IN THE MATTER OF AN ARBITRATION  
(Under the Labour Relations Act, 1995)  
BETWEEN:  
ONTARIO POWER GENERATION INC.  
-AND-  
(“OPG”)  
THE SOCIETY OF UNITED PROFESSIONALS  
(“Society”)  
AND IN THE MATTER OF an arbitration of a Society Policy Grievance OPGI-2021-  
673/2886 regarding the use of Rotationsunder Article 65 of the collective agreement  
between the parties.  
BEFORE: G. T. SURDYKOWSKI Sole Arbitrator  
APPEARANCES:  
For OPG: William J. Hayter, Counsel; Nicholas Mandic, Human Resources; Travis  
Savoie, Human Resources; Karl Pavasars, RG&PWRMRKT; Elinor D’Cunha,  
RG&PWRMRKT; Jennifer Blakely, Human Resources.  
For the Society: Kathryn Bell, Labour Relations Staff Officer; Joseph Fierro, Local Vice-  
President; Jim Mastorakos; Unit Director.  
Zoom hearing held on September 1, 2021 and January 12, 2022.  
2
INDEX by page number  
I.  
WHAT THIS CASE IS ABOUT………………………………………………….3  
PROCESS…………………………………………………………………………3  
FACTS References to individuals by surname only for ease of exposition.)…...3  
THE COLLECTIVE AGREEMENT……………………………………………16  
SUBMISSIONS Summarized  
II.  
III.  
IV.  
V.  
(a)  
The Society………………………………………………………………16  
(b)  
OPG……………………………………………………………………...20  
VI.  
DECISION……………………………………………………………………….25  
(a)  
(b)  
Principles of Collective Agreement Interpretation and Application…….25  
The Bloch and Mitchell Awards Require Consideration………………...27  
(i)  
(ii)  
Bloch Awards…………………………………………………….27  
Mitchell Award…………………………………………………..30  
(c)  
The Collective Agreement Interpretation and Application……………...35  
(i)  
(ii)  
(iii)  
The Society’s Complaint…………………………………………35  
The Operation of Article 65……………………………………...36  
Application to the Society’s Complaint  
(a) Summary Dispositions……………………………………….46  
(b) Disposition of Specific Issues Raised By the Parties………..47  
(d)  
Result…………………………………………………………………….55  
APPENDIX A Text of Grievance……………………………………………………...58  
APPENDIX B Collective Agreement Provisions……………………………………...59  
3
AWARD  
I.  
WHAT THIS CASE IS ABOUT  
The text of the Society’s “Statement of Policy Grievance” is set out in full in  
1.  
Appendix A (page 57). In summary, the grievance alleges that OPG has violated Article  
65 of the collective agreement by improperly using rotational and other short-term  
assignments in the Market Day Ahead & Real Time Operations Group. The Society  
alleges that OPG has violated Articles 65.2 and 65.5.2 of the collective agreement by  
improperly using rotations to staff ongoing MP-4 positions, and has violated Articles 65.3  
and 65.6.1 by improperly using what it refers to as “Non-Base Assignments” (“NBAs”)  
to “step-up” employees in MP-4 and MP-5 positions into vacant MP-5 and MP-6  
positions.  
2.  
OPG denies the allegations and submits that the grievance should be dismissed.  
PROCESS  
II.  
3.  
The parties filed Hearing Briefs which significantly expedited the hearing (but not  
the time it took to write this Award). OPG also called one witness: Elinor D’Cunha,  
Director Commercial Operations since 2019. D’Cunha is responsible for the Market Day  
Ahead & Real Time Operations Group. This Group consists of two teams: The Day  
Ahead Team, and the Real Time Operations Team.  
III.  
FACTS References to individuals by surname only for ease of exposition.)  
4.  
The Society does not dispute the facts asserted by OPG in its Hearing Brief or  
testified to by D’Cunha to any material extent.  
5. The Day Ahead Team works days, Monday to Friday. As its title suggests, it is  
responsible for forecasting and preparing for all forms of OPG’s next day and week  
ahead power generation requirements with a view to ensuring power grid stability and  
reliability, and maximizing revenue.  
6.  
The Real Time Operations Team works on a 24/7 basis in a Control Room  
previously and often still referred to as the “PMC”. The Real Time Operations Team  
constantly monitors the power grid in real-time to ensure that power is available when  
and where it is needed. The Team monitors power generation market conditions and the  
activities of other power generators in the marketplace. It adjusts the Day Ahead Team’s  
plan as required and offers OPG power on a price per megawatt basis to the Independent  
4
Electricity System Operator (IESO) which manages Ontario’s power system on a real-  
time hourly basis.  
7.  
8.  
The focus of this case is on the Real Time Operations Team.  
The standard bargaining unit Real Time Operations Team complement is 18  
employees distributed over 6 crews. Five crews work rotating day and night shifts, and  
the 6th (commonly referred to as the “G Crew”) is a day shift crew. The normal 3-  
employee complement of each crew consists of one MP-4 Coordinator, one MP-5  
Specialist, and one MP-6 Supervisor. The Coordinator’s function is logistical, primarily  
with respect to start and stop times for nuclear and other non-hydroelectric generation.  
The Specialist focuses on OPG’s more complex hydroelectric generation operations. The  
Supervisor has overall crew responsibility, and is responsible for submitting OPG’s  
hourly generation offers to the IESO and ensuring that the IESO’s dispatches match the  
offers. The nature of the Real Time Operations Team function requires the 3 crew  
positions to work together, which has the collateral effect of enabling learning and  
development within the crew.  
9.  
OPG says and D’Cunha testified that the duties and responsibilities of the Real  
Time Operations Team requires specialized knowledge and skill sets which don’t exist  
and cannot be acquired elsewhere in OPG’s organization. D’Cunha says the MP-5  
Specialist and MP-6 Supervisor positions require 4-6 months of on-the-job training and  
experience, depending on the individual and the skill set they bring to the position, but  
perhaps less so if they have previously been assigned to the Team.  
10.  
D’Cunha testified that OPG’s objective is to maintain the Real Time Operations  
Team’s complement at 18, consisting of 6 employees in each of the MP-4 Coordinator,  
MP-5 Specialist and MP-6 Supervisor shift positions. She acknowledges that this isn’t  
always actually the case as employees move out of and into the Team, and that staffing  
imbalances may occur, particularly between the MP-4 and MP-5 positions, as a result of  
the ripple effect of permanent departures or temporary rotations out and backfilling  
staffing gaps with rotations in or step-ups.  
11.  
D’Cunha spoke to the 2019, 2020 and 2021 Real Time Operations Team shift  
schedule documentation included in Society Book of Documents, Ts 5, 6 and 7 (which  
there is no dispute are historical documents that reflect the schedules worked as of  
December 18, 2019, November 10, 2020 and August 17, 2021 respectively). She  
described how the master schedule is created in or about the end November for the  
following year, subject to change as required as the year goes on. A new version is  
issued (only, I infer) if there is a departure from the Team. Otherwise changes are made  
5
“on the go” (as employees swap shifts or are absent due to illness, for example).  
D’Cunha matched the names on the schedules to the MP-4 Coordinator, MP-5 Specialist,  
and MP-6 Supervisor positions; and identified employees who rotated into the Team,  
employees she referred to as “placeholder”, multi-purpose employees on standby not  
assigned to but available to cover a shift if required, employees in training, and  
employees who had rotated out but could be called in to cover a shift if needed. The  
annual master schedule is emailed to “everyone” (presumably on or associated with the  
Real Time Operations Team at the time) as well as to the Society Unit Director when it is  
issued. Updated schedules are available and accessible to everyone on the Team, which  
D’Cunha testified includes a Society Delegate (but not a Society Unit Director).  
12.  
Notwithstanding D’Cunha’s testimony that OPG seeks to maintain the Real Time  
Operations Team staffing complement at 18, the Team schedules in evidence show a  
monthly Team work roster complement varying between 20 in May-July and September-  
December 2021 and 27 in January 2019. In 2019 the roster complement varied between  
25 and 27; between 22 and 23 in 2020; and between 20 and 22 in 2021. The schedules  
sometimes include employees who have rotated out to other assignments and sometimes  
they do not. For example, Beard’s name remained on the schedule throughout  
notwithstanding that she was on a rotation out of the bargaining unit from November  
2019 through September 2020, and on another rotation out of the Team that began in late  
September or early October 2020 and is scheduled to end in April 2023. Wong and Sauer  
also remained on the schedules during parts of their rotations out of the Team until April  
2021 (details below). I note that the 2019 schedules include a “placeholder” group of 5  
employees in February, 4 in December, and 4 grouped with an MP-6 employee in  
January and March-November. This “placeholder” grouping disappeared from the 2020  
and 2021 schedules. This “placeholder” curiousity was left unexplained, but that doesn’t  
matter for purposes of this Award.  
13.  
D’Cunha testified that if a permanent staffing gap arises (e.g. if a Team member  
decides to retire), the resulting permanent vacancy is typically filled by way of a  
permanent job posting at the MP-4 Coordinator level, regardless of which position left or  
going to be left vacant as a result. This is so even if the departing employee is a MP-5  
Specialist or a MP-6 Supervisor because Control Room employees are trained to the next  
level up, so that MP-5 Specialists are trained to the MP-6 Supervisor level and MP-4  
Coordinators are trained to the MP-5 Specialist level in order to provide flexibility and  
absence coverage. D’Cunha testified that this “up-level” training provides flexibility  
within the Team, reduces the danger that employees will become “stale”, and  
accommodates and minimizes the disruption caused by vacations and other absences. It  
also means that the most likely source of candidates to fill a vacant MP-5 Specialist or  
6
MP-6 Supervisor position is the Team itself. D’Dunha says an applicant for either  
position from outside the Team could not function in the job without a “lot” of training.  
14.  
A staffing gap left by a permanently departed employee must typically be filled in  
the interim. If the gap is at the MP-6 Supervisor level a MP-5 Specialist is temporarily  
“stepped up” to fill it and a MP-4 Coordinator is stepped up to fill the gap left by the MP-  
5 Specialist, leaving the MP-4 Coordinator gap to be filled. Stepped-up employees are  
paid at the appropriate rate for the position they are stepped up to. Society  
Supplementary Book of Documents Tab 4 summarizes 18 step-ups within the Real Time  
Operations Team between May 2, 2019 and (it appears) Sept 8 or 9, 2021, and an OPG  
“Step Up Assignments” document (filed notwithstanding OPG’s objection that post-  
grievance evidence is irrelevant and therefore inadmissible) details and updates these18  
step ups within the Real Time Operations Team to December 2021.  
15.  
The permanent position posting and selection process to fill a vacant MP-4  
position generally takes several weeks to a month, following which the successful  
applicant may not be released by the Unit they are coming from for up to 3 months  
because all Departments/Units are resource challenged. Some 4-6 months of training may  
then be required, depending on the employee’s skill set and previous training. D’Cunha  
says it can take 9-12 months start-to-finish for the successful applicant for a posted MP-4  
Coordinator position to be a fully functional member of the Real Time Operations Team.  
The amount of time required may be less if successful applicant is from the broader  
Market Day Ahead & Real Time Operations Group or has previously been in the Control  
Room on a rotation assignment. (Such filling of an ongoing position with a rotation  
assignment is one of the things the Society complains about). There typically remains a  
temporary complement gap while the new MP-4 Coordinator is trained to the point that  
they can do the job themselves.  
16.  
Temporary Real Time Operations Team complement gaps can also occur if a  
Team member takes a rotation assignment outside of the Control Room. D’Cunha  
testified that (in her opinion by which I am not bound) a “rotation out” does not create a  
permanent vacancy because the base position has to be maintained for the employee who  
has rotated out to return to. Article 65.5.5 of the collective agreement provides that an  
employee who accepts a rotation assignment within the Society’s bargaining unit has the  
right to “will be given a guarantee by the sending unit that they can return to their  
original position, if available, or to a comparable position normally with the sending  
unit”. I note that although Article 5.1.3 provides that bargaining unit employees  
temporarily assigned to perform work outside the bargaining unit continue to have “all  
benefits, plans or entitlements” under the specified collective agreement provisions,  
including Article 65, for the full duration of the assignment, Article 65.5 specifically  
7
states that it “does not apply to rotations outside the Society jurisdiction”. This is further  
analyzed below.  
17.  
Any Real Time Operations Team complement gap must in any case be filled. It is  
typically filled by OPG with a “rotation in” by an employee from outside the Team.  
Rotations out and in are demonstrated by the documents at T3 and T4 of the Society’s  
Book of Documents and an OPG Excel spreadsheet for the period January 2019 to June  
2023 (again notwithstanding OPG’s objection that post-grievance evidence is irrelevant  
and therefore inadmissible). Society Book of Documents T10 contains documentation  
for rotations into the Real Time Operations Team, and Society Supplementary Book of  
Documents Ts 1, 2 and 3 contain documentation relating to rotations out of the Team.  
D’Cunha testified that there is typically no exact temporal correlation between rotations  
out and rotations in because of availability and release issues.  
18.  
The Society claims that the following rotations into the Real Time Operations  
Team MP-4 Coordinator positions have occurred since November 2018 (quoted from  
paragraph 10 of the Society’s Hearing Brief):  
First Set of Rotations:  
John Jonassen (November 2018 rotation ended and made regular [permanent]  
in January 2020)  
Jeffrey Sauer (2019 rotation ended and made regular [permanent] in October  
2019, no letter in documents)  
Roger Liu (pre-Jan 2019 rotation ended and made regular [permanent] in  
August 2019, no letter in documents)  
Gagan Toor (Dec 2019 Feb 2020, no letter in documents)  
Second Set of Rotations:  
Melisa Licenji (Jan 2020 March 2022)  
Jasmine Majdpour (July 2020 July 2021)  
Hassan Hamden [sic] (June 2020 Jan 2022)  
Third Set of Rotations:  
Tolbert Akanni (July 2021 July 2023)  
Marina Fiorente (July 2021 July 2023)  
2 MP-4 rotations have been posted in the group as of the date of this brief  
[November 1, 2021].”  
19.  
OPG’s Hearing Brief and the documentation provided details employee  
movements into and out of the Real Time Operations Team. The Society claims that the  
shift schedule documentation included in its Book of Documents demonstrates that all the  
rotations into the Team have filled or are filling the same three MP-4 vacancies.  
8
D’Cunha confirmed that all of the rotations in were at the MP-4 level and that because of  
the up-level training employees on the Team receive, internal step-ups have been used to  
cover the gaps left by MP-5 and MP-6 rotations out.  
20.  
The Society claims that as at the November 1, 2021 date of its Hearing Brief the  
complement of the Real Time Operations Team was 5 MP-4s, 7 MP-5s and 6 MP-6s, as  
demonstrated by the organizational charts included in Ts 3 and 4 of its Book of  
Documents. D’Cunha and OPG in its Hearing Brief deny that is actually the case. They  
say that MP-4s and MP-5s are “juggled” to fill gaps and maintain appropriate Real Time  
Operations Team coverage; that is, so that there is always full coverage on all 3 (MP-4,  
MP-5 and MP-6) desks for all 6 shifts (i.e. the 5 rotating shifts and the G day shift).  
21.  
In cross-examination D’Cunha agreed that there are times when there is a  
combination of MP-4s and MP-5s covering the MP-4 desk, in which case a covering MP-  
5 is stepped down to the MP-4 level (but still paid as an MP-5) to backfill an empty MP-4  
desk, but that the Real Time Operations Team is always staffed by a full complement of  
18. D’Cunha confirmed that there is nothing in the shift schedules that indicates that an  
employee is in a stepped-down or stepped-up position. She also confirmed that a fully  
staffed without holes Real Time Operations Team consists of a MP-4 Coordinator, a MP-  
5 Specialist, and a MP-6 Supervisor on all 6 shifts. D’Cunha testified that if there is  
enough warning and an opportunity to do so, MP-4s are sometimes brought into the Real  
Time Operations Team in anticipation of a gap before it actually occurs. She also  
testified that a MP-4 may even be brought into the Team on a developmental opportunity  
basis in response to an employee expression of interest (which I infer is even if there isn’t  
an actual or anticipated gap in the standard 18-person complement). She added that the  
day shift G Crew is also used as a developmental crew because of the learning  
opportunities afforded by that crew’s exposure to outside groups. It seems that G Crew  
developmental opportunities are for other than Real Time Operations Team purposes  
because D’Cunha testified that this is why OPG wants more experienced people on the G  
Crew (although Licenji’s rotation into the Real Time Operations Team per Society Bok  
of Documents T10 detailed below was specifically to G Crew but nothing turns on  
this).  
22.  
D’Cunha spoke to the Organization Chart and other rotation documentation in the  
Society’s Books of Documents, and to OPG’s Excel spreadsheet summary and Hearing  
Brief in that respect. Read together they reveal that since January 2019, 9 employees  
have rotated into the Real Time Operations Team in fill gaps created by 3 retirements and  
5 rotations out (Sauer, who subsequently became permanent and then rotated out, Liu,  
Jonassen, Toor, Licenji, Hamdan, Majdpour, Akanni and Fiorente ). OPG’s uncontested  
assertion is that the vacancy created by Ing’s retirement was posted as a MP-5 position.  
9
The Organization Charts the Society relies on show that he was an MP-5 Specialist. That  
vacancy has since been filled by White, who had been an MP-4 Coordinator on the Real  
Time Operations Team. I have no evidence of the positions of the other retirees (Norman  
and Speed). D’Cunha testified that in addition to the rotations in, retiree Pathy was  
brought in on contract to fill in a gap on the Team.1 The individuals who rotated out  
were MP-4 Coordinator Sauer (to a Market Affairs position); MP-6 Supervisor Beard (to  
a management role and then to a bargaining unit Market Renewal assignment); MP-6  
Supervisor Wong (to OPG wholly owned but operationally separate subsidiary Atura);  
and MP-4 Eminowicz (to a Market Affairs position that became permanent). The  
documentation provided reveals the following details2:  
Sauer: OPG’s Excel spreadsheet shows that Sauer rotated into the Real Time  
Operations Team in July 2018 and became permanent in or about October 2019.  
OPG’s Hearing Brief states and the Organization Charts show this was into a MP-  
4 Coordinator position. The spreadsheet shows that Sauer rotated out of his Real  
Time Operations Team position to a “Market Affairs” position outside the  
bargaining unit in or about September 2020 and is scheduled to return in  
September 2022. OPG’s Hearing Brief states that Sauer rotated out on September  
3, 2020 and was replaced with a rotation in at the MP-4 level. I have no other  
documentation relating to Sauer’s 2019 movements, including any Article 5.1.1  
notice to the Society.  
Liu: The Excel spreadsheet shows that Liu rotated into the Real Time Operations  
Team in March 2019 and became permanent in or about the end of July or  
beginning of August 2019. The Organization Charts show him as a MP-4  
Coordinator. There is no other documentation relating to Liu’s 2019 rotation into  
the Real Time Operations Team, including any Article 65.3 notice to the Society.  
Jonassen: The Excel spreadsheet states that Jonassen’s time in the Real Time  
Operations Team “started Nov 2018, permanent role in DA [Day Ahead] Jan  
2020”. The Society’s Supplementary Book of Documents T3 includes a  
September 27, 2018 letter that shows that Jonassen started a rotation into a MP-4  
Coordinator Real Time Operations Team position on November 1, 2018 that was  
scheduled to last for “Up to12 months (Subject to change based on resourcing &  
1 Pathy’s name appears on the January-March and May 2019 schedules provided. No other documentation  
relating to him is before me.  
2 Although not all relevant rotation documentation is before me, it appears that the Society received copies  
of the documentation confirming all accepted rotations into the Real Time Operations Team. There is no  
suggestion it did not.  
10  
business requirements)”; a July 15, 2019 letter extending the rotation to December  
31, 2019; and a December 10, 2019 letter further extending it to June 28, 2020.  
There is no supporting documentation for the spreadsheet notation that Jonassen  
became permanent on the Day Ahead Team in January 2020 or regarding his  
resignation. I note that Jonassen’s name appears on the Real Time Operations  
Team schedule throughout 2020.3 There is no Article 65.5.2 posting  
documentation for Jonassen’s more than 6-month long initial rotation, or evidence  
that OPG gave the Society any Article 65.3 notice of either the initial rotation or  
either extension.  
Wong: The Organization Charts and the parties’ Hearing Briefs identify Wong as  
a Real Time Operations Team MP-6 Supervisor. The Excel spreadsheet shows  
that Wong rotated out of his Real Time Operations Team bargaining unit position  
to a “DA [Day Ahead] Manager” position outside the bargaining unit in or about  
late March 2019, and to a non-bargaining unit “RT [Real Time] Manager”  
position in or about October 2019 (i.e. both were rotations out of the Society  
bargaining unit). The Society’s Supplementary Book of Documents includes a  
March 30, 2020 offer of a “Sr Manager Real Time Market Ops” position outside  
the bargaining unit beginning April 1, 2020 and ending October 8, 2020 which  
Wong accepted.4 The spreadsheet shows that Wong then rotated out of the Team  
on a secondment to Atura (a wholly owned but operationally separate subsidiary  
of OPG) in or about April 2021 and is scheduled to return in or about the  
beginning of May 2022 to work outside of the Control Room. D’Cunha explained  
that Ontario Energy Board (“OEB”) requirements prohibit Wong from being  
placed back into the Control Room for a period of 6 months when rotates back  
into the Real Time Operations Team from Atura, and that he will be assigned to  
the Commercial Operations Team for that period. There is no evidence that OPG  
gave the Society any Article 5.1.1 notice of any of Wong’s moves to positions  
outside the bargaining unit.  
Beard: The Organization Charts and the parties’ Hearing Briefs identify Beard as  
a Real Time Operations Team MP-6 Supervisor. The Excel spreadsheet shows  
that Beard rotated out of her Real Time Operations Team bargaining unit position  
3 Sauer’s and Jonassen’s names appear on the Real Time Operations Team schedule for every month in  
2019 and 2020. Jonassen’s name is no longer on the schedule beginning January 2021, and Sauer’s name  
no longer appears beginning May 2021. Liu’s name first appears in March 2019 and is no longer on the  
schedule beginning January 2021. D’Cunha testified that one cannot tell from the schedule whether an  
employee on it was in a permanent or rotational position, or in a step-up (or step-down) position.  
4 Although Wong’s and Beard’s names appear on the Real Time Operations Team schedule throughout  
their rotation out assignments, this is not inconsistent because D’Cunha testified that employees who have  
rotated out of the Real Time Operations Team remain available to fill in a gap if necessary.  
11  
to a “Settlements Manager” position outside the bargaining unit from in or about  
late November 2019 to in or about late September 2020. This is consistent with a  
November 19, 2019 offer Beard accepted for a Senior Manager Settlements  
position starting November 21, 2019 and ending September 18, 2020 (Society  
Supplementary Book of Documents, T2). The spreadsheet shows that  
immediately thereafter Beard was assigned to a bargaining unit “Market  
Renewal” position beginning September 2020 and scheduled to end at the end of  
April 2023 a period of some 31 months. There is no supporting documentary  
evidence for this. D’Cunha testified that after Beard’s rotation out to the Senior  
Manager Settlements assignment ended she rotated back into the Real Time  
Operations Team but that because of her Control Room expertise she was  
assigned to the Market Renewal Project which D’Cunha says is still on the Team  
but not on the shift schedule. However, Beard was available to fill in in the  
Control Room if needed which I suppose explains why Beard actually did  
remain on the shift schedules throughout. Despite her testimony in chief, in  
cross-examination D’Cunha offered that Beard’s move to Market Renewal was  
“technically” not a rotation. What D’Cunha meant by that is unclear. (If not a  
rotation, what was (is) it?) There is no evidence that OPG gave the Society any  
Article 5.1.1 notice of Beard’s move to the “Settlements Manager” position, or of  
any Article 65.3 notice to the Society of her Market Renewal Project assignment,  
of any Article 65.5.2 posting, or any Society agreement to either dispense with a  
posting or to extend the assignment beyond 2 years.  
Toor: The Excel spreadsheet shows that Toor rotated into the Real Time  
Operations Team on a NBAin or about December 2019 and left in or about  
February 2020. However, his name continued to appear on the shift schedules  
until July 2020. There is no explanation for this apparent anomaly, although the  
blanks beside his name suggest he was not actually available for work after  
February 2020. There is no documentation or mention in OPG’s Hearing Brief of  
Toor. There is no evidence that OPG gave the Society any Article 65.3 notice of  
Toor’s assignment.  
Licenji: The Excel spreadsheet shows that Licenji rotated into the Real Time  
Operations Team in or about March 2020 and became permanent in or about the  
end of August or beginning of September 2021. The only related document (other  
than the work schedules) is a November 23, 2020 letter that indicates that the  
rotation was offered to her on March 1, 2020 (which means that it started on or  
after that) and confirms the extension of the rotation to March 1, 2022. This  
apparently ended prematurely when she was made permanent. OPG’s Hearing  
Brief states that Licenji rotated into the Real Time Operations Team on March 1,  
12  
2020 to cover the gap left by Beard’s rotation out and was expected to end March  
1, 2021 but was extended to March 1, 2022, and that she was selected to fill the  
permanent MP-4 Coordinator vacancy left by Eminowicz’ departure in October  
2021. However, D’Cunha testified the Licenji’s rotation in “technically” covered  
Wong’s rotation out, and that Licenji filled the permanent vacancy left by Ing’s  
retirement and Akanni backfilled the rotation gap left as a result (see below). As  
an initially more than 6-month long rotation Article 65.5.2 required that it be  
posted unless the Society agreed otherwise. There is no evidence that it was  
posted, or that the Society agreed it did not have to be. The “extension” of the  
rotationto March 1, 2022 was arguably a new assignment. In any event, there  
is no evidence that the Society received Article 65.3 notice of relating to these  
assignments.  
Hamdan: The Excel spreadsheet shows he rotated into the Real Time Operations  
Team in or about June 2020 and that he “resigned” in or about September 2021.  
The only related document (other than the work schedules) is a November 23,  
2020 letter that indicates that the rotation was offered to him on June 3, 2020  
(which must mean it started on or after that date) and confirms the extension of  
the rotation to January 2, 2022. D’Cunha testified and OPG’s Hearing Brief  
indicates that Hamdan’s rotation in partly covered the gap left by Beard’s rotation  
out. Hamdan’s resignation is not documented in the materials before me. As a  
more than 6-month long rotation Article 65.5.2 required that it be posted unless  
the Society agreed otherwise. There is no evidence that it was posted, or that the  
Society agreed it did not have to be. There is no evidence that the Society  
received Article 65.3 notice of relating to Hamdan’s assignment.  
Majdpour: The spreadsheet shows that Majdpour rotated into the Real Time  
Operations Team in or about June 2020 and “resigned” in or about June 2021.  
The only related document (other than the work schedules) is a February 28, 2020  
letter that specifies a July 16, 2020 rotation MP-4 Coordinator start date and a  
July 14, 2021 end date (subject to change). D’Cunha testified that Majdpour’s  
rotation in covered the gap left by Sauer’s rotation out. Majdpour’s resignation is  
not documented in the materials before me. There is no Article 65.5.2 posting  
documentation for the more than 6-month long rotation, or evidence that OPG  
gave the Society any Article 65.3 notice of the rotation.  
Akanni: A May 20, 2021 letter in both of the Society’s Books of Documents  
specifies a July 8, 2021 MP-4 Coordinator rotation start date and a July 8, 2023  
end date (subject to change). The Excel spreadsheet shows that Akanni rotated  
into the Real Time Operations Team on a NBA in April 2021, that that was turned  
13  
into a rotation in or about July 2021, and that he became permanent in the Team  
in or about September 2021 as Eminowicz’ replacement (see below); which is  
inconsistent with OPG’s assertion that Licenji replaced Eminowicz and that  
Akanni replaced Majdpour to cover the domino effect of Ing’s absence when  
Majdpour resigned (although nothing turns on this). There is no documentation  
relating to the change of Akanni’s status to permanent other than the undisputed  
assertion in OPG’s Hearing Brief that Akanni moved into Ing’s MP-5 Specialist  
position. D’Cunha testified that the Team was scrambling when Ing gave what  
was effectively one month’s notice of retirement and brought in Akanni, who had  
expressed interest but was unsure whether shift work was for him, in on a NBA to  
let him try it out. As noted above, D’Cunha testified that Licenji, who was  
already on the Team in a rotation in position, filled the permanent vacancy left by  
Ing’s retirement and Akanni backfilled into her rotation spot. OPG’s Hearing  
Brief states (in paragraph 37(a)) that Akanni moved into the Real Time  
Operations Team on April 15, 2021 on a NBA that OPG’s Pavasars discussed  
with Society Unit Director Mastorakos, pursuant to Article 65.3. A rotation was  
posted at the MP-4 level, an offer letter was given to Akani on May 20, 2021 and  
the rotation commenced on July 8, 2021. There is no Article 65.5.2 posting  
documentation for the more than 6-month long rotation.  
Fiorente: The Excel spreadsheet shows that like Akanni, Fiorente took a NBA on  
the Real Time Operations Team in or about April to June 2021, then rotated into  
the Team in July 2021 with the expectation that she will leave in or about June  
2023. An August 10, 2021 letter included in the Society’s Books of Documents  
backdates her rotation into a MP-4 Coordinator Real Time Operations Team  
position effective July 12, 2021 with a July 12, 2023 end date. There is no Article  
65.5.2 posting documentation for the more than 6-month long rotation, or  
evidence that OPG gave the Society any Article 65.3 notice of the rotation.  
D’Cunha testified that bringing Fiorente in on an NBA was part of the effort to  
fill the gap created by Ing’s retirement after she, like Akanni, expressed interest  
but was not sure shift work was for her. However, D’Cunha also testified that  
Fiorente backfilled MP-4 Coordinator Eminowicz’ position when he rotated out  
of the Real Time Operations Team, and that when Eminowicz’ departure became  
permanent Akanni was the successful applicant for the resulting permanent  
vacancy job posting, and Fiorente then backfilled Akannis’ rotation in, initially on  
a NBA and then on a rotation in. OPG’s Hearing Brief states (in paragraph 37(b))  
that Fiorente came into the Real Time Operations Team from the Day Ahead  
Team on a NBA beginning May 20, 2021 following an Article 65.3 discussion  
between OPG’s Pavasars and Society Unit Director Mastorakos, and that after  
training in the NBA she was the successful applicant for a 2 year rotation which  
14  
began on July 12, 2021 which suggests there was an Article 65.5.2 posting  
notwithstanding that there is no posting documentation in evidence.  
Sunassy: The Excel spreadsheet shows Sunassy took a NBA in the Real Time  
Operations Team from July to November 2021. OPG’s Hearing Brief states that  
her NBA was scheduled to conclude on January 12, 2022 in anticipation of the  
MP-4 and MP-5 vacancies created Akanni’s move into Ing’s MP-5 position when  
the latter retired. There is no evidence about what Sunassy was doing from  
December 2021 to January 12, 2022. There is no evidence that OPG gave the  
Society any Article 65.3 notice of Sunassy’s more than 10 working days “NBA”.  
Note: Notwithstanding the absence of posting documentation, OPG asserts in its Hearing  
Brief (paragraph 40-41) that “separate Incoming Rotations for [Real Time Operations  
Team] MP-4s have been posted” to fill the staffing gaps left by Wong’s and Beard’s  
rotations out of the Real Time Operations Team. There is nothing in the Society’s  
documentation or submissions that suggest otherwise.  
23.  
Other than a reference to him on the Excel spreadsheet that he “left PMC [Control  
Room] permanent on July 15 [2021]” and references to him in OPG’s Hearing Brief there  
is no documentation relating to Eminowicz before me. As indicated above, D’Cunha  
testified that Eminowicz was a MP-4 Control Room Coordinator who initially rotated out  
and had his position backfilled by Fiorente, that Akanni was the successful applicant for  
Eminowicz’ permanent position when his departure became permanent, and that Fiorente  
then backfilled Akannis rotation in initially on a NBA and then on a rotation in.  
24.  
OPG describes two forms of NBA in its Hearing Brief: an assignment of an  
employee to a different role within that employee’s own work group (usually as step-up  
to a higher level); and an assignment of an employee out of his work group for more than  
10 days but less than 6 months. D’Cunha testified about NBAs, using Akanni, Fiorente  
and Toor as examples. She testified that Toor expressed an interest in the Real Time  
Operations Team but was not sure that shiftwork was for him so it was decided to use the  
NBA as an opportunity for him to try it out. In the result and unlike Akanni and Fiorente,  
Toor decided the Real Time Operations Team was not for him. D’Cunha testified that  
NBAs are for up to 6 months, after which it must be posted as a rotation. She did not  
explain where this understanding comes from. D’Cunha says the only notice to the  
Society of a NBA is through the schedule which is available to the Society Delegate in  
the Control Room, and that there is a 20-year practice of using NBAs. (It is not clear  
whether D’Cunha meant in the Real Time Operations Team since that is what she was  
speaking to or more broadly, but again nothing turn on this distinction). She is not aware  
of any Society grievance in that respect (other than this one). D’Cunha testified in cross-  
15  
examination that she believes that the collective agreement permits a NBA to be used for  
up to 6 months because a posting is not required unless it is for more than 6 months –  
which although she did not say so seems to equate such a NBA to a rotation (having  
regard to Article 65.5.2).  
25.  
D’Cunha’s attention was drawn to the article 65.3 advance planning requirements  
for assignments lasting more than 10 days. She testified that the Real Time Operations  
Team Manager has a conversation with the Society Unit Director about NBAs and  
rotations. She acknowledges that there have been miscommunications in that respect, but  
repeated that OPG has used step-ups for a long time without the Society raising any  
issues in that respect. Despite the assertion on OPG’s Hearing Brief, D’Cunha offered  
that a step-up is different from a NBA. She did not explain why or how they are different  
and acknowledged that OPG does not have formal advance planning discussions with the  
Society about step-ups. She acknowledged that none of the step-ups documented in the  
Society’s Supplementary Book of Documents T4 and OPG’s “Step Up Assignments”  
document were posted. She offered that many factors are considered and that a short  
notice departure may influence the length of a step-up.  
26.  
It was suggested to D’Cunha in cross-examination that 5.2 MP-4 FTEs (full-time  
equivalents) are required to fill the role on the Real Time Operations Team. She  
responded that she doesn’t know about that, but that what is required is a total  
complement of 18. There is reference to a 5.2 FTE roster requirement in an April 3-  
September 23, 2019 email chain between Day Ahead and Real Time Operations Group  
Sr. Manager Rosati and Society Unit Director Mastorakos (Society Book of Documents  
T8). In an April 3, 2019 email Mastorakos stated that a “full shift complement of MP-4’s  
requires 5.2 FTE’s” but that there will only be 4 MP-4s in the “newly aligned units”, and  
asked Rosati how he planned “to meet the 0.2 FTE gap that will exist” in the shift  
schedule. Rosati responded that he would “distribute that 0.2 FTE of coverage among  
existing staff. Mastorakos wrote back that he (for the Society) needed more specificity,  
and asked whether the plan was to bring MP-4s in on overtime to meet the scheduling  
shortfall, or to meet the 0.2 FTE shortfall by scheduling MP-5s on G Crew to cover open  
shifts. Rosati responded that OPG would schedule MP-5s (on G crew) to cover the open  
shifts. Rosati followed up on September 23, 2019, writing that he thought he had sent  
Mastorakos a follow up “saying we were not moving forward on this” but that he may  
have just told him verbally, adding:  
“Anyway, as per our conversation this morning, I have re-considered this based on  
observing the needs of G crew over the last 6 months and I would like to move forward  
with this. Let me know if Society has any issues or if you have any questions.”  
Mastorakos responded:  
16  
“So, in a nutshell, you are asking for the Society’s concurrence to go under complement  
MP-4’s (i.e., 5 FTE’s); to go over complement MP-5’s (i.e., 7 FTE’s); and stay at  
complement MP-6’s (i.e., 6 FTE’s). The Society does not have any issues with this  
request and is in agreement with your plan to realign the PMC as detailed above and  
noted below.”  
Rosati replied that that was correct.  
27.  
There is no other evidence about Real Time Operations Team FTE staffing  
requirements (including where these come from, or reference to any collective agreement  
provision in that respect).  
IV.  
THE COLLECTIVE AGREEMENT  
28.  
Because the collective agreement provisions in play are lengthy, they are set out  
in Appendix B (page 58) for ease of reference.  
V.  
SUBMISSIONS - Summarized  
29.  
The partiesHearing Briefs include extensive submissions. Counsel  
supplemented these with oral submissions at the January 12, 2022 hearing, most of which  
elaborated on in their respective Hearing Briefs or responded to the other party’s  
submissions.  
30.  
Notwithstanding the references in OPG’s Hearing Brief submissions to the Day  
Ahead & Real Time Operations Group or the “Group”, the focus of D’Cunha’s testimony  
and both parties’ Hearing Briefs is on the complement and movements in and out of the  
Real Time Operations Team, which as noted above is part of the Day Ahead & Real  
Time Operations Group. The analysis required does not depend on any distinction  
between the Group and the Team. I will therefore refer only to the Real Time Operations  
Team in my summary of the parties’ submissions (except when using direct quotes).  
(a)  
The Society  
31.  
To repeat, the Society alleges that OPG has violated Article 65 of the collective  
agreement by improperly using rotational and other short-term assignments in the Day  
Ahead & Real Time Operations group. The Society alleges that OPG has violated  
Articles 65.2 and 65.5.2 of the collective agreement by improperly using rotations to staff  
ongoing permanent MP-4 positions, and has violated Articles 65.3 and 65.6.1 by  
17  
improperly using NBAs to step-up MP-4 and MP-5 employees into vacant MP-5 and  
MP-6 positions respectively.  
32.  
The Society submits that the collective agreement provides OPG with only three  
options for filling vacancies: short-term “reliefassignments normally for up to 3 months  
and not exceeding 1 year; rotationassignments normally for more than 3 months but  
not exceeding 2 years without the Society’s agreement; and ongoing positions that must  
be posted and filled as permanent positions. The Society argues that the collective  
agreement treats a rotation assignment that continues for more than 2 years without the  
Society’s consent to be an ongoing regular position that must be treated and filled as a  
permanent vacancy (in accordance with Article 65.6.1).  
33.  
The Society submits that on the undisputed facts in this case, the Real Time  
Operations Team MP-4 positions being filled with the rotation assignments in issue are  
incontrovertibly ongoing positions. Ms. Bell argues that OPG does not have a collective  
agreement right to backfill an ongoing position with a rotation assignment, and is in any  
case not permitted to extend a rotation assignment beyond 2 years without the Society’s  
agreement. She submits that OPG created a permanent shortfall in the number of MP-4  
Coordinator positions in the Real Time Operations Team in September 2019, and has  
since then been improperly using rotation assignments to fill these permanent vacancies.  
Ms. Bell submits that the evidence suggests that OPG intends to continue to do until at  
least 2023.  
34.  
The Society points out that Article 65.5 provides that rotations are used to  
accomplish work for situations that occur between short-term relief and ongoing  
positions, and that Article 65.5.2 stipulates that the Society’s approval is required in  
order for OPG to continue a rotation “beyond two years”. The Society claims that OPG  
has been using back-to-back rotation assignments, albeit of different employees, to fill 3  
ongoing MP-4 Coordinator positions on the Real Time Operations Team contrary to  
Article 65.2 since before 2019. The Society submits that these rotations have effectively  
been ongoing for over two years without its agreement, contrary to Articles 65.2 and  
65.5.2. The Society argues that OPG has been improperly circumventing the 2-year limit  
on rotation assignments by repeatedly re-posting and filling what are really the same  
assignments. The Society submits that although the employees who have filled the MP-4  
rotation assignments have changed, the positions filled by the assignments have not, and  
that back-to-back rotation assignments to different employees in what is in fact the same  
ongoing position violates the collective agreement prescribed time limit for such  
assignments. Ms. Bell argues that interpreting the collective agreement in a manner that  
permits OPG to do what it has been doing would be an absurd result that would render  
meaningless the Article 65.5.2 requirement for Society agreement. The Society submits  
18  
that the 2-year limitation on rotation assignments without the Society’s agreement applies  
to the work, not to the length of time any individual employee is assigned to perform it.  
35.  
The Society further submits that OPG’s use of either NBAs or “step-upsto place  
MP-4 and MP-5 Real Time Operations Team employees in vacancies in MP-5 and MP-6  
Team positions violates Article 65.6.1 which recognizes relief, rotation, and regular  
posting as the only available options for filling positions. The Society submits that NBA  
is a work assignment tool in OPG’s collective agreement with the PWU and is not a term  
used or recognized in its collective agreement with OPG. Ms. Bell argues that it is  
apparent from D’Cunha’s evidence that what OPG has been calling a NBA is really a  
rotation assignment. She submits that OPG cannot unilaterally appoint employees to  
vacancies except in accordance with Article 65, and specifically Article 65.6.1 which  
specifies that: “All vacancies for assignments which do not fall into the category of relief  
or rotations shall be advertised OPG-wide unless there is agreement with the Society  
Local Vice-President or the following conditions apply: …”, none of which do.  
36.  
The Society submits that OPG’s “step-ups” are really relief or rotation  
assignments which need not be posted if they are for less than 6 months, but that Article  
65.3 requires advance planning with the Society Unit Director in that respect. The  
Society submits that OPG has violated Article 65.3 by failing to conduct the required  
advance planning with the Society’s Unit Director, or providing the required notice or  
information to the Society in that respect. Ms. Bell says that the fact that there is a  
Society Delegate on the Real Time Operations Team who can discover whether an  
employee has been stepped-up does not satisfy OPG’s Article 65.3 “Advance Planning”  
obligation.  
37.  
The Society claims that the result of the April 3-September 23, 2019 email  
exchange between Rosati and Mastorakos (paragraph 26, above) is an agreement to  
convert one of the regular Real Time Operations Team MP-4 positions to a MP-5  
position. The Society submits that OPG has in any event used perpetual MP-4 rotations  
to fill the alleged 0.2 MP-4 FTE shortfall on the Real Time Operations Team by creating  
a MP-4 rotation assignment staffed on a consistent basis since 2019 (Society Hearing  
Brief paragraph 9).  
38.  
Correctly anticipating OPG’s argument that the Article 65.5.5 right of an  
employee on a rotation assignment to return to their original position means that position  
cannot be filled as a permanent vacancy, Ms. Bell points out that the actual collective  
agreement guarantee is that an employee who accepts a rotation can return to their  
original position “if available, or to a comparable position normally with the sending  
unit”, which means that such an employee’s “original” or base position is not held for  
19  
them. She points out that the evidence suggests that an employee who rotates out of their  
base position may not seek to return to that position for years, and that there is no  
reasonable expectation that an employee on rotation will seek return to their original or  
base position.  
39.  
In response to OPG’s reliance on Article 65.5.1(g) the Society seems to concede  
that OPG can use a rotation assignment to backfill a position (Wong’s for example), but  
only for a maximum of 2 years without the Society’s agreement (presumably a  
submission in the alternative since this is inconsistent with its primary position that a  
rotation cannot be used to fill an ongoing position).  
40.  
Ms. Bell also anticipated that OPG would rely on Arbitrator Bloch’s apparently  
unreported September 18, 2007, November 21, 2008, and May 15, 2013 Awards  
concerning Article 65.3. She argues that Arbitrator Bloch did not say that the Appendix  
B form attached to the 2007 Award was either agreed to or binding on the parties. She  
submits that OPG cannot subvert the collective agreement by using a form that has not  
been agreed to as part of the collective agreement, or by conferring a status not  
recognized in the collective agreement to an employee or position. She argues that the  
fact that doing so may be to OPG’s and an employee’s advantage is a consideration that  
is subject to the restrictions in the collective agreement.  
41.  
In essence, the Society submits (adapted from paragraphs 36-37 of the Society’s  
Hearing Brief) that:  
(a)  
(b)  
OPG has been violating Article 65.2 and 65.5.2 of the collective agreement by  
using back-to-back rotations to fill the same ongoing Real Time Operations Team  
MP-4 Coordinator vacancies for more than 2 years without the Society’s  
agreement.  
OPG has violated Article 65.6.1 of the collective agreement by using what it  
refers to as a “Non-Base Assignments” to “step up” MP-4s and MP-5s in the Day  
Ahead & Real Time Operations group [sic] into vacant MP-5 and MP-6  
positionsinstead of one of the only 3 collective agreement options available  
(relief, rotation, or regular posting). A Non-Base Assignment is not an  
assignment in the Society collective agreement, and OPG cannot unilaterally  
appoint employees to vacancies except in accordance with the terms of Article  
65.5  
5 Quotes taken from paragraph 37 of the Society’s Hearing Brief.  
20  
(c)  
OPG has violated Article 65.3 by failing to meet with the Society Unit Director  
for advance planning purposes with respect to the short term positions in issue.  
42.  
Ms. Bell cited paragraphs 77-78 of my decision in Ontario Power Generation v.  
Society of Energy Professionals (Policy Grievance OPGN-2010-5640), 2012  
CarswellOnt 16274, 113 C.L.A.S. 127; 2012 CanLII 90054 (ON LA) in support of the  
Society’s submissions.  
43.  
The Society seeks the following relief (paragraph 38 of the Society’s Hearing  
Brief):  
1.  
A Declaration that OPG has violated Article 65 by using MP-4 Real Time Market  
Coordinator rotation assignments for ongoing work, and by extending such  
assignments beyond 2 years without the Society’s agreement.  
2.  
3.  
A Declaration that OPG is only allowed to use the relief, rotation, and regular  
assignments specified in the collective agreement to fill vacancies.  
An Order requiring OPG to post and fill the 3 Real Time Operations Team MP-4  
Coordinator positions it has been treating as rotation assignments as regular  
positions.  
4.  
5.  
An Order requiring OPG to stop using “NBAs” to fill Day Ahead & Real Time  
Operations Group short-term assignment needs.  
An Order requiring OPG to fill the Day Ahead & Real Time Operations Group  
short-term assignment needs using the collective agreement relief, rotation,  
regular/permanent or temporary job classifications, with proper advance planning  
notification and formal offer letters to employees in accordance with the  
collective agreement.  
(b)  
44.  
OPG  
OPG submits that the thrust of the Society’s claim that back-to-back rotations into  
the Real Time Operations Team MP-4 positions violates the collective agreement fails to  
account for the rotations out of the Team that had or have to be backfilled.  
45.  
OPG notes that the parties’ have specified in Article 65.1 that their intention is  
that Article 65 “Vacancies (Relief, Rotations and Selections)” will provide open and fair  
access to career opportunities, and enable OPG to customize staffing requirements.  
21  
46.  
Pointing to the definitions in Article 65.2 and the different processes for filling the  
work assignments defined in Articles 65.3, 65.3 and 65.5, Mr. Hayter submits that the  
only limitation on a relief assignment of less than 3 months for “short term bridging for  
selection or rotation” is that “the process for selecting the employee should be easy and  
quick and provide a fair opportunity to employees in the work unit to perform relief.” He  
argues that this means that it is the assignment, not the work that must be less than 3  
months in duration. Mr. Hayter notes that although rotation assignments expected to last  
6 months or longer must be posted (Article 65.5.2), relief assignments and rotations  
shorter than 6 months need not be. He argues that it is in any case the assignment not  
the work that duration limitations apply to.  
47.  
OPG submits in paragraph 6 of its Hearing Brief that:  
“Article 65.5 provides that “rotations are used to accomplish work for situations that  
occur between short-term relief and ongoing positions”. ‘Ongoing positions’ is not  
defined but is presumably work which is ongoing, not currently performed by someone  
for whom it is a Base position, and therefore subject to the permanent vacancy process.  
In other words, an “ongoing position” would not describe the situation where a regular  
employee leaves her Base position to take up a Rotation and who will return to that Base  
position when the rotation has ended.”  
(Italicized emphasis supplied.)  
Further, says Mr. Hayter, Articles 65.3, 65.4 and 65.5 set out different processes for  
filling the defined “Relief/Rotations”, “Relief”, and “Rotations” respectively, and submits  
that OPG has not violated any of them.  
48.  
OPG submits that the factual situation presented concerns the “principles” in  
Article 65.5.1, particularly clauses (b) and (g). Mr. Hayter argues that these collective  
agreement “principles” authorize the use of rotations to resource regular Real Time  
Operations Team positions whose incumbents have taken a rotation assignment outside  
of the Team to work in temporary work programs or fill other temporary workload  
requirements. Mr. Hayter notes that Article 65.6.1(b) excludes “vacancies” to be filled  
by an employee returning from a relief or rotation assignment from the posting  
requirement, and that there is therefore no requirement to post either a vacated position in  
a sending Unit, or the position in the receiving Unit when an employee returns to their  
base position in the sending Unit when the rotation ends. He submits that the Society’s  
submissions fail to take the employee right Article 65.5 right to return to their original  
position into account.  
49.  
Mr. Hayter submits that the Article 65.5.1(g) principle confirms OPG’s  
management right to determine whether, and how to staff a work group or team in  
22  
response to a rotation out, because it gives OPG flexibility “in resourcing regular  
positions as a result of employees being provided rotational opportunities and temporary  
relief assignments” and to meet the requirements of temporary work programs or  
workload requirements. He argues that this means that OPG need not post a rotation into  
a MP-6 position when a base MP-6 employee leaves on a rotation assignment. He  
submits OPG has the management right to determine the level of the replacement rotation  
in and to step-up an employee within the same work group to a higher classification in  
this case, for example, to step-up a MP-5 Specialist to the fill the MP-6 Supervisor  
position left by the MP-6 on an Outgoing Rotation, and to step-up a MP-4 Coordinator to  
fill the stepped-up MP-5’s position.  
50.  
OPG does not plead estoppel. However, Mr. Hayter submits that step-ups have  
occurred in the Real Time Operations Team to the knowledge on Society Unit Directors  
who have access to the master and monthly revised schedules, which he says show which  
employees have been stepped-up, for at least 20 years without grievance or other  
complaint from the Society. Mr. Hayter submits that there is nothing about OPG’s use of  
step-ups that is contrary to the collective agreement.  
51.  
Mr. Hayter notes that there is nothing in the collective agreement that either limits  
the number of rotation assignments an employee can accept, or restricts OPG’s Article  
65.5.1(b) or (g) flexibility rights “to resource regular positions as a result of employees  
being provided rotational opportunities and temporary relief assignments” when an  
employee is released on consecutive rotations, or to meet temporary work programs and  
workload requirements. He submits that Article 65 gives OPG the right to replace a  
rotation out with a rotation in, and reiterates that since every employee on a rotation has  
the right to return to their base position, vacancies created by rotations need not be  
posted. He argues that it follows that the replacement of a rotation out with a rotation in  
cannot constitute a permanent vacancy which must be posted, regardless of the number of  
consecutive rotations that takes the base employee away because the base position  
remains, and the complement within the Team (or Group as a whole) does not change.  
52.  
OPG submits that it has staffed the Real Time Operations Team in manner that  
has allowed senior employees like Beard and Wong to use rotations out to enhance their  
career aspirations and opportunities, and that these have in turn enhanced the career  
aspirations, opportunities and training of other employees within the Real Time  
Operations Team who have been stepped-up to backfill MP-5 and MP-6 positions, and  
also for bargaining unit employees from outside of the Team who have rotated in at the  
MP-4 level to backfill for them. OPG’s Hearing Brief acknowledges (in paragraphs 40-  
41) that there have been successive different MP-6 (Beard and Wong) rotations out of the  
Team and that in each case, OPG has backfilled the staffing gaps left at the bottom MP-4  
23  
end of the staffing complement with different posted rotations in for the MP-4 rotations.  
(The Society’s Hearing Brief confirms, at paragraph 12, that these rotations have been  
filled with different persons.) OPG submits that its use of rotations does no violence to  
the integrity of Article 65.  
53.  
Mr. Hayter argues that the evidence establishes that the nature of the work of the  
Real Time Operations Team positions requires a high degree of specialized training and  
knowledge that can only be acquired on the job and makes it impractical, if not  
impossible, for OPG to fill gaps in the necessary 18-employee complement of the Real  
Time Operations Team in other than the way it has. He reiterates that this is also to the  
career development benefit of the Team employees who are stepped-up or employees  
from outside of the Team who rotate in to fill gaps created by employees who have  
rotated out. He says that it would be a simple matter for OPG to accede to the Society’s  
positon by refusing to allow any rotations out, but that that would not be in anyone’s best  
interests.  
54.  
OPG points out that Liu, Sauer and Jonassen all successfully applied for a posted  
permanent MP-4 vacancy while on a rotation into the Real Time Operations Team, and  
that Licenji’s, Hamdan’s, Majdpour’s, Akanni’s and Fiorente’s rotations into the team did  
not, or in Fiorente’s case is not expected to, extend beyond 2 years. Mr. Hayter submits  
that the Society’s submission that the continuous rotations into to MP-4 Real Time  
Operations Team positions that have not changed ignores that fact that they were  
necessitated by rotations out of the Team and were filled by different employees.  
Although OPG does not concede that either rotations out or rotations in have to be filled  
by different employees in order to be Article 65 compliant, Mr. Hayter argues that having  
all been filled by different employees all of the rotations have been separate and Article  
65 compliant.  
55.  
OPG submits that on the facts in this case, there have been no vacancies in any  
“ongoing” positions that have not been posted (as they have been when an employee has  
left the Real Time Operations Team permanently), albeit perhaps with a temporary step-  
up or rotation in to fill the staffing gap until the posting and selection process has been  
completed.  
56.  
OPG says that the Real Time Operations Team complement head count has never  
changed from the standard 18. Mr. Hayter submits that although workplace exigencies  
sometimes mean that the cascading rotations out and compensatory rotations in are not  
temporally symmetrical and may result in what appears to be a deviation from the regular  
MP-4 Coordinator, a MP-5 Specialist and a MP-6 Supervisor staffing for each of the  
rotating shifts and the G day shift crew (such as the current staffing complement of 5 MP-  
24  
4s, 7 MP-5s and 6 MP-6s), the total of 6 employees in each position for a total Team  
complement of 18 has always been maintained. He in effect argues that anomalies are  
temporary and do not violate the collective agreement (as explained in paragraphs 20-31  
of OPG’s Hearing Brief).  
57.  
In paragraphs 47-53 of its Hearing Brief, OPG denies that the collective  
agreement limits it to relief, rotation, and regular position options to fill vacancies, or that  
the use of NBAs constitutes a violation of Article 65. Mr. Hayter points to the  
“Temporary Assignment in a Higher-Rated Job” provisions in Article 66.4 in that respect.  
He also says that the Society’s claims (in paragraph 33 of its Hearing Brief) that step-ups  
and NBAs are subject to the Article 65.3 notice requirements was not an allegation made  
in the grievance before me.  
58.  
OPG seems to acknowledge that the term NBA is not found in the collective  
agreement, and in effect submits that NBA refers to any assignment of an employee away  
from their regular or “base” position for less than 6 months. Mr. Hayter points to the  
references to NBAs in the 2007 Bloch Award (particularly the “Change in Reporting  
Relationship and Non-Base Assignment” form attached as Appendix B), the 2008 Bloch  
Award, and the 2021 Mitchell Award, as demonstrating OPG’s appropriate use of NBAs.  
Mr. Hayter says that the Society has not previously taken issue with OPG’s more than 20-  
year use of NBAs as assignments to a different role within the employee’s work group,  
usually as a step-up, or as assignments outside of the employee’s work group for more  
than 10 (working) days and less than 6 months. He points out that there is nothing in the  
collective agreement apart from Article 65.3 regarding any process requirements for such  
assignments, and says that OPG gave Society Unit Director Mastorakos notice of the  
NBAs of Akanni and Fiorente.  
59.  
In his oral submissions, Mr. Hayter acknowledged that OPG did not give the  
Society Article 65.3 notice of relief assignments, but submits that neither Article 65.3 nor  
anything ese in the collective agreement requires notice to the Society of relief  
assignments and that there is also a 20-year practice of not giving the Society such notice.  
However, he says that if the Society wants notice of such assignments OPG will provide  
it, and that no Declaration is required for the purpose.  
60.  
The essence of OPG’s submissions adapted from paragraph 54 of OPG’s Hearing  
Brief is that:  
(a)  
The rotations into the Real Time Operations Team complained about by the  
Society are rotations that were or are in response to the rotations out of the Team,  
25  
and that this use of rotations to resource staffing needs is expressly recognized by  
Article 65.  
(b)  
(c)  
(d)  
(e)  
(f)  
It has the right to determine the level of a rotation in to fill a staffing gap left by a  
rotation out.  
There is no collective agreement limitation on the number of rotations an  
employee may be released for, whether successive or otherwise.  
An employee who accepts a rotation assignment has an Article 65 right to return  
to their base position provided it is available (and it is kept available).  
Article 65 does not require any “vacancy” created by either a rotation in or a  
rotation out to be posted.  
It has the right to use step-ups to assign employees within their work group to  
perform the work at a higher MP level.  
(g)  
The Society’s complaint about OPG’s use of step-ups and the application to them  
of Article 65.3 was not raised in the grievance herein. Nor has the Society filed  
any grievances concerning step-ups in the more than 20 years they have been used  
in the Day Ahead & Real Time Operations Group.  
(i)  
A NBA for less than 6 months need not be posted; and the NBA form is an  
acceptable administrative payroll tool that need not be given to the Society.  
VI.  
DECISION  
61.  
This is a case of collective agreement interpretation and application. The  
meaning and application of the collective agreement provisions that speak to rotations  
must be established before the specific issues raised can be determined; namely, Article  
65 and as indicated in paragraph 67, below, Article 5 notwithstanding that the parties  
paid no attention to it.  
(a)  
Principles of Collective Agreement Interpretation and Application  
62.  
The primary rule of collective agreement interpretation is that the words used  
must be given their plain and ordinary labour relations meaning unless it is clear from the  
structure of the provision in issue read in the applicable labour relations context that a  
different or special meaning is intended, or the plain and ordinary meaning result would  
26  
be illegal or absurd. Words or phrases cannot be inferred or ignored unless doing so is  
essential to the apparent purposive labour relations interpretation required, in which case  
the opposite must be done. A specific or special provision prevails over a general  
provision because it indicates a more focused attention by the parties.  
63.  
The Supreme Court of Canada’s instructive decision in Sattva Capital Corp. v.  
Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633 provides a reminder that  
the context of the contract read as a whole and the objective context within which the  
contract was negotiated can be a significant contract interpretation consideration.  
However, as Rothstein J. made clear in paragraph 60 of Sattva, context cannot change or  
“overrule” the meaning of the words used by the parties to express their mutual  
contractual intention. That is, words matter most, in no small part because the context  
that matters is the one which was or ought to have been known to both parties when the  
words agreed to were selected.  
64.  
The grievance arbitrator’s task is to determine the objective contextual labour  
relations meaning of the collective agreement, with the words used being the most  
important consideration. The fundamental rebuttable presumptive rule of contract  
interpretation is that the parties to the contract purposely chose the language used to  
express their shared intention. That is, the presumption is that the parties wrote what they  
meant and meant what they wrote. This presumption is as applicable to a collective  
agreement as it is to any other contract.  
65.  
It seems to require constant repeating that considerations of collective agreement  
purpose, fairness, internal anomalies, cost or administrative difficulty, or the effect on the  
parties or bargaining unit or other employees can only be considered if the grievance  
arbitrator is faced with a choice between equally plausible interpretations of the collective  
agreement language in issue. The grievance arbitrator’s task is to determine what the  
collective agreement objectively requires or prohibits, regardless of the impact on the  
parties or employees. The employer, union and bargaining unit employees are entitled to  
no more or less than the benefit of the bargain made in the collective agreement as  
described by the words the parties chose to use. It is no part of a grievance arbitrator’s  
job to save the parties (or either of them) from the consequences of the agreement they  
have written.6  
66.  
As noted above, the parties provided me with September 18, 2007, November 21,  
2008, and May 15, 2013 Awards concerning Article 65.3 issued by Arbitrator Bloch, and  
a June 9, 2021 Award issued by Arbitrator Mitchell concerning Article 10.3(a) in which  
6 See, for example: Ontario Power Generation v. Society of Energy Professionals (Policy Grievance  
OPGN-2010-5640), 2012 CarswellOnt 16274, 2012 CanLII 90054 (ON LA) at paragraphs 77-78; and  
paragraphs 69-72 of Bell Canada v. Unifor, 2021 CanLII 134922 (ON LA) at paragraphs 69-72.  
27  
he considered the provisions in Article 65. Although counsel made little more than  
passing reference to these Awards I have read and considered them carefully.  
67.  
Despite the hint provided by Article 65.5, it was only after I carefully read the  
Bloch and Mitchell Awards and began my deep dive into Article 65 that it became  
apparent that it was necessary to examine the interplay between it and Article 5 in order  
to determine the dispute between the parties. I don’t make this observation to be critical  
of counsel or the parties, because I understand why their focus was on Article 65.  
However, the fact is that they made no submissions about the meaning or application of  
Article 5 or how its connection might inform the interpretation of Article 65. I  
considered asking for submissions on the point, but Article 5 is referenced in the 2013  
Bloch Award as well as in Article 65.5 so the connection was apparent and readily  
available for consideration and comment by the parties who prior to this case were  
more familiar with Article 65 than I.  
68.  
Nevertheless, and notwithstanding that I consider it impossible to fully consider  
the meaning and application of the provisions in Article 65 without also considering and  
commenting on the application of Article 5, I consider it inappropriate to do so in manner  
that would require a remedial response.  
(b)  
The Bloch and Mitchell Awards Require Consideration  
(i) Bloch Awards  
Arbitrator Bloch’s 2007 Award concerned the application of Article 65.3 as it  
69.  
then was. The only difference between the language of the provision then and now is that  
the words “of greater than ten (10) working days duration” have since been added. As  
Arbitrator Mitchell observed in his subsequent Award, this appears to be a consent  
Award intended to resolve the issue going forward.  
70.  
Arbitrator Bloch described the issue that had led to numerous Society complaints  
about OPG Nuclear Generation managers ignoring both the requirements of Article 65.3  
and the instructions of the OPG senior management, including the Chief Nuclear Officer,  
to comply with the provision. He noted and attached as Appendix B to his Award the  
NBA form that OPG amended for Society collective agreement use (the form OPG points  
to in this case), which managers were required to complete and comply with. This form  
includes a box requiring confirmation of communication with the Society in compliance  
with Article 65.3. It is apparent from the references to “Gang”, “Chief Steward”, and to  
the PWU that this was as the Society claims a PWU collective agreement form adapted  
for the purpose.  
28  
71.  
Arbitrator Bloch required the Society to particularize any alleged violations of  
Article 65.3 after the date of the Award to OPG and gave OPG two weeks to investigate  
and respond, following which the Society could refer any dispute to him for adjudication.  
He cautioned OPG that he had the authority to issue a monetary penalty in cases of  
“wanton disregard for compliance with article 65.3” and remained seized.7  
72.  
Arbitrator Bloch’s 2008 Award concerned further instances of alleged non-  
compliance by OPG with Article 65.3 regarding late notification and/or extensions”  
further to his 2007 Award. Arbitrator Bloch ordered OPG to ensure that Article 65.3 was  
complied with going forward and to pay damages” (not a penalty) in the apparently  
arbitrary amount of $5,000.00 to “fully and finally resolve all alleged violations of  
Article 65.3 which are or may be alleged to have occurred up to and including November  
24th, 2008. This was likely also in the nature of a not so called consent Award.  
73.  
The 2007 and 2008 Awards did not resolve the issue because Arbitrator Bloch  
revisited what he described as the parties’ vexing Article 65.3 problem in his 2013  
Award. He reviewed the situation presented to him, which he stated included 44  
grievances concerning the application of Article 65.3. The actual issue Arbitrator Bloch  
proceeded to determine was whether Article 65.3 applies to the assignments outside the  
Society’s bargaining unit contemplated by Article 5. In paragraph 22, Arbitrator Bloch  
dismissed “this grievance”. He held that the Society “has not, by operation of the  
collective agreement, retained any rights provided by Article 65.3 for employees working  
outside the jurisdiction of the Society’s recognition clause”. He held that he therefore  
had no jurisdiction to “adjudicate the application of Article 65.3 (Advance Planning) to  
Society members who would be working outside the bargaining unit”.  
74.  
In coming to his final determination, Arbitrator Bloch wrote in paragraph 18 as  
follows:  
18.  
I find that the phrase in Article 5.1.3: “Society-Represented employees who are  
temporarily assigned to positions outside the bargaining unit shall have access to  
all…” is modified by the sentence, “Except where otherwise specified in this  
Agreement….” In effect, that ph[r]ase was intended for situations where the  
parties wished to give Society-represented employees greater rights and  
privileges than mere access to a limited number of collective agreement articles.  
That is not the case with Article 65.3. For Article 65.3 to apply to work  
7 It is not clear where this “authority” came from. Unless the collective agreement specifically gives  
grievance arbitrators authority to impose monetary penalties, an arbitrator’s monetary jurisdiction is limited  
to compensatory damages. The OPG-Society collective agreement herein does not give grievance  
arbitrators monetary penalty jurisdiction. Nor did any previous collective agreement between the parties so  
far as I am aware (and I have been arbitrating grievances under the parties’ collective agreement for some  
25 years).  
29  
assignments outside the bargaining [S]ociety jurisdiction, the parties would have  
had to agree in a clear and unequivocal manner that Article 65.3 would  
specifically apply, prior to filling a work assignment outside the Society  
bargaining unit. The parties did not.  
75.  
In paragraph 20 Arbitrator Bloch cited an example of the mischief he concluded  
would be caused by a determination that Article 65.3 applies to temporary assignments to  
a management role (i.e. outside the Society’s bargaining unit); namely, that such an  
assignment would then be governed by Article 65.6 and require the position to be  
“advertised”, which I take to mean it would have to be posted and filled in accordance  
with that provision.  
76.  
I agree with Arbitrator Bloch’s May 15, 2013 determination that Article 65.3 does  
not apply to temporary work assignments outside the Society’s bargaining unit. With  
respect, however, I find his analysis insufficient for purposes of the real dispute between  
the parties.  
77.  
Unlike Article 65.5, there is nothing in Article 65.3 itself that suggests it does not  
apply before a Society-represented employee leaves the bargaining unit to take an  
assignment outside the bargaining unit. Article 5.1.3 states that: Except where  
otherwise specified in this Agreement, Society-represented employees who are  
temporarily assigned to positions outside the bargaining unit shall have access to all  
benefits, plans or entitlements under” the provisions specified, which include Article 65,  
“for the full duration of the assignment.” Article 65.5 begins by clearly stating that it  
does not apply to rotations “outside the Society jurisdiction”, and that Article 5 applies to  
such assignments. Article 65.3 obviously comes before and forms no part of Article 65.5  
or vice versa. The only part of Article 65 that the collective agreement specifies is  
excluded from application to bargaining unit employee assignments outside of the  
Society’s jurisdiction is Article 65.5. That is the only “otherwise specified” provision.  
The application of no other Article 65 provision, including Article 65.3, is excluded.  
78.  
However, Article 5.1.1 specifies that the Society “shall be given prior notice of  
any temporary assignment exceeding three months’ duration that OPG considers outside  
the bargaining unit, along with a rationale for the proposed exclusion”. Clearly, the  
Society is entitled to notice of longer than 3-month assignments of bargaining unit  
employee outside the bargaining unit. The necessary implication of the specified  
entitlement is that the Society is not entitled to notice of such assignments for 3 months  
or less. As a notice provision specific to temporary assignments outside the bargaining  
30  
unit Article 5.1.1 applies8. This is the reason Article 65.3 does not apply to temporary  
assignments outside the bargaining unit.  
79.  
Arbitrator Bloch did not explain why he didn’t consider the Society’s right to  
notice under Article 5, notwithstanding that he referenced the provision in the Award.  
80.  
Further, the potential mischief imagined in paragraph 20 of Arbitrator Bloch’s  
2013 Award does not exist. It does not follow from the Article 5.1.1 notice requirement  
for more than 3-month long temporary assignments outside of the bargaining unit that a  
management or any other non-bargaining unit position has to be posted or filled in  
accordance with Article 65.6. The opening words of Article 65.6 specifically state that it  
does not apply to relief or rotations which by Article 65.2 definition are short-term  
temporary assignments. It is apparent from Article 65.6 read as a whole that it only  
applies to permanent bargaining unit “vacancies”, and not at all to “vacancies” that occur  
as a result of an Article 65 short-term relief or rotation assignment, or a temporary  
assignment outside the bargaining unit, which is what Article 5 contemplates and speaks  
to. Article 65.6 does not apply to any management of other non-Society bargaining unit  
position, temporary or otherwise. I will have more to say about this below.  
(ii)  
Mitchell Award  
81.  
Arbitrator Mitchell’s June 9, 2021 Award concerned the application of Article  
10.3(a) to rotations of less than six months duration, but also considered the application  
of Articles 65.3 and 65.5.4, with a focus on the meaning of the term “vacancy”.  
Arbitrator Mitchell stated (in paragraph 26) that he was not ruling on the meaning of the  
words “selected for rotation” in Article 65.5.4, “and whether that refers to all processes  
by which management determines who will be assigned a rotation”, or on whether all  
rotations are voluntary.  
82.  
Article 10.3(a) is not in issue before me. (Indeed, neither party referenced the  
provision in their submissions.) However, in the process of determining the grievance  
before him Arbitrator Mitchell considered the meaning and application of the provisions  
in Article 65 which are directly in issue before me, and I am obliged to consider his  
assessment of those provisions.  
8 Article 5.1.2 provides that the Society “shall continue to represent employees who have been temporarily  
removed from their regular positions to perform work outside the bargaining unit for the first three months  
of the temporary assignment”, and that dues “shall be deducted and remitted to the Society for the entire  
period of the temporary assignment of a Society member while performing work outside the bargaining  
unit.” The parties have clearly and unequivocally agreed that the Society has the specified notice and  
representation rights for bargaining unit employees who are assigned to work outside the bargaining unit.  
That is, the Society’s jurisdiction extends to employees outside the bargaining unit to the extent specified in  
Article 5.  
31  
83.  
Arbitrator Mitchell notes (in paragraph 26) that the term “vacancy” appears some  
140 times in the collective agreement. I don’t consider it necessary to check his count.  
However, I note that nowhere in the Award does he reference the plain and ordinary  
labour relations meaning of “vacancy” (i.e. “an unoccupied position”, which implies an  
existing “unoccupied ongoing position”).  
84.  
Ambiguity is not as rampant in the collective agreement as the Mitchell Award  
suggests. That may appear to be the case at first glance, but a fully contextualized labour  
relations reading of the collective agreement provisions in issue in accordance with the  
rules of collective agreement interpretation suggests otherwise. Although better wording  
could have been used, I do not agree with the conclusion (in Mitchell Award paragraphs  
27-28) that either the heading of Article 65 or the language of Article 65.6.1 creates an  
ambiguity about the meaning of “vacancy” or whether a rotation involves a form of  
vacancy.  
85.  
As noted above, a grievance arbitrator’s job is to interpret the collective  
agreement by giving the words used by the parties their apparently intended meaning.  
The plain and ordinary meaning, same word same meaning, and words not to be inferred  
or ignored presumptions are all rebuttable, either by objective evidence of contrary  
intention or by an appropriate contextual reading of the provision(s) in issue. The  
arbitrator must consider whether it is necessary to depart from the plain and ordinary  
meaning if it is apparent that a different meaning is intended, whether the same word  
necessarily has a different meaning in different subject areas of the agreement, or whether  
it is necessary to imply or ignore words in order to give the apparently intended  
purposeful effect of the provisions in issue. It is especially important to be sensitive to  
such considerations in a collective agreement as lengthy and complex as this one between  
OPG and the Society. In a collective agreement like this one the appropriate internal  
interpretation context may be the provisions in the subject area, not the entire collective  
agreement read as a whole.  
86.  
Arbitrator Mitchell concluded (in paragraph 28) that notwithstanding the  
numerous collective agreement differences between the parties, the focus of the dispute  
before him concerned the meaning of the term “vacancy” having regard to what he  
considered to be the ambiguities in Articles 10.3(a) and 65.  
87.  
I agree with Arbitrator Mitchell that Article 65.6.1 can be read as meaning that  
vacancy assignments, which are not relief or rotational assignments, must be advertised”  
and that this “interpretation is supported by the heading which states “Selections for  
Assignments Other Than Relief or Rotations” which suggests it is the assignments, not  
32  
the vacancies which include the categories of relief and rotational assignments”  
(underlined emphasis supplied). Arbitrator Mitchell went on to conclude that while this  
appears to be the most sensible interpretation, it is not unambiguous. I agree that this  
interpretation of the opening words of Article 65.6.1 is the most sensible, but I  
respectfully disagree with his conclusion that the language is nevertheless ambiguous.  
88.  
The fact that collective agreement language can be read in more than one way  
does not necessarily mean it is legally ambiguous. Not all possible interpretations are  
equal. The question is not whether collective agreement language can be read in more  
than one way, but whether a particular interpretation is compelling. An interpretation  
which is the “most sensible” is prima facie the appropriate one.  
89.  
In this collective agreement selection for relief or rotation assignments is  
specifically dealt with in other parts of Article 65 (Article 65.4.2 for relief assignment  
selection, 65.5.2 for rotation postings posting, and Article 65.5.3 for rotation selection)  
and I am satisfied that in the context of Article 65 read as a whole the only reasonable  
interpretation is that Article 65.6 (which obviously includes Article 65.6.1) applies only  
to permanent assignments, which are necessarily permanent vacancies.  
90.  
Arbitrator Mitchell concluded (in paragraph 29) that OPG’s submission that  
there is a distinction in the collective agreement between “work assignments” that are  
generally short term and made as relief or rotational assignments, and ongoing positions,  
the filling of which are vacancies and governed by Article 65.6.1.”, the implication being  
that “work assignments are short term while vacancies are long term and ongoing”, was  
not compelling on the language of the agreement. Although he accepted that there is a  
clear difference between ongoing and short-term positions, he found that it did not follow  
that there is a definitional correlation between those two distinctions on the one hand,  
and vacancies and work assignments on the other”, because, for example, the Article  
65.6.1 reference to “all vacancies for assignments” indicates that vacancies are  
assignments, and “this would seem to be a “work assignment”, even though the word  
“work” is not used.” He continued that:  
“More importantly, while the term “work assignment” is used in Article 65.1 and  
elsewhere to refer explicitly to relief and rotational positions, or to short term positions  
for temporary employees, the same precise term is also used in other contexts, such as  
Articles 3.1 [definition of Probationary Employee classification], 55.2 [definition of  
Regular Work Headquarters], and 72.2.8 [dealing with Project Crew work schedule  
assignments], where the words “work assignment” appear to have a more generic  
meaning and do not appear to refer exclusively to short term assignments.”  
91.  
It should be apparent from the above that I disagree. With respect, rather than  
making the point, Arbitrator Mitchell’s analysis serves only to demonstrate the futility of  
33  
taking an overly broad contextual view that includes contexts that have nothing to do  
with the subject area concepts in issue. I agree that there is a clear difference between  
ongoing and short-term positions. There is equally a clear difference between ongoing  
positions and short-term or temporary assignments. Under the collective agreement  
between OPG and the Society, an ongoing position is not an assignment. Employees are  
selected to fill vacancies in ongoing positions. Employees are assignedto either fill  
temporary short-term staffing gaps, or to temporary short-term non-ongoing work.  
92.  
I agree with Arbitrator Mitchell (in his paragraphs 30-31) that the specific  
definitions within a collective agreement Article apply to the substantive provisions  
within that Article and take precedence over the heading of the Article (something that is  
generally true, and particularly if the heading is ambiguous or even misleading). But  
specific definitions for the purpose of the operation of the substantive collective  
agreement provisions to which they apply do not necessarily apply to or inform the  
interpretation of other collective agreement provisions that have a different purpose. I  
also agree with the conclusion that if the parties had wanted relief and rotational  
assignments to be ways in which vacancies could be filled they could have done so. In  
fact the parties have done the opposite. They have structured Article 65 in a manner that  
makes it clear that neither relief nor rotation assignments can be used to fill vacancies.  
Both the inherent and the Article 65 definition of “relief” (in particular the purposive  
Article 65.4.1) preclude the use of such assignments to fill vacancies. Article 65.4.4  
specifically states that relief assignments “will not be used continuously to avoid  
advertising [i.e. posting and filling] … an ongoing [i.e. permanent] position.” And  
Articles 65.2 and 65.5 clearly state that “rotations” are assignments to “positions” that are  
not ongoing.  
93.  
Arbitrator Mitchell did not consider the contextual relationship (or lack of  
relationship) between Article 10.3 as a whole (not just clause (a)) and Article 65. Article  
10.3 is a general bargaining unit information provision intended to ensure that the Society  
has the information about bargaining unit employees necessary for it to properly carry out  
its duties and responsibilities as their collective bargaining. The only Society information  
provision in Article 65 is 65.3, which deals with the movement of bargaining unit  
employees into relief or rotation assignments which are by definition “short-term”  
(meaning, for no more than 90 days or up to 1 year with by mutual agreement in the case  
of relief; and for no more than 2 years unless mutually agreed in the case of rotations) –  
and which I am satisfied do not fill “vacancies”.  
94.  
Although he mentions the collective agreement definitions of “relief” and  
“rotations”, Arbitrator Mitchell did not examine them. Article 65.2 defines “relief” as  
temporary short-term assignments of an individual (which must be a bargaining unit  
34  
employee) to positions that are ongoing or are expected to be ongoing for up to 3 months.  
(Article 65.4.3 specifically limits a relief assignment to 90 days unless the parties to agree  
to extend it “for up to one year”.) Article 65.2 defines “rotations” to be assignments for  
more than 3 months but not longer than 2 years (subject to the parties agreeing to  
continue a rotation beyond 2 years Article 65.5.2) to positions not expected to be  
ongoing.  
95.  
In paragraph 32 of his Award Arbitrator Mitchell held that “the wording of  
Article 65.4(sic he obviously meant Article 65.5.4) is ambiguous, and went on to  
consider the extrinsic evidence before him. He concluded (in paragraph 40) that the  
Society’s extrinsic evidence was not helpful, but that OPG’s evidence of past practice,  
including the practice of providing Society Unit Directors with email notification of  
rotation assignments of less than 6 months duration pursuant to the 2007 Bloch Award –  
which concerned Article 65.3 and had nothing to do with Article 10.3(a) provided  
compelling clarification of the Article 10.3(a) ambiguity, and that in the result this  
provision “does not require OPG to provide the Unit Directors of the Society with notice  
of the appointment of individuals to rotations of less than six months.  
96.  
Notwithstanding my concerns about his analysis, I agree with Arbitrator  
Mitchell’s conclusion that Article 10.3(a) does not apply to rotations of less than 6  
months duration. Although he did not specifically determine the meaning of “vacancies”  
in Article 10.3(a), the necessary implication his Award is that the extrinsic past practice  
evidence establishes that the parties’ shared understanding is that an assignment to  
rotations of less than 6 months duration are not assignments to “vacancies”. I agree with  
that as well.  
97.  
But with respect, Article 10.3(a) doesn’t apply to rotations at all, and it isn’t  
necessary to resort to extrinsic evidence to arrive at this conclusion. Paragraph 30 of the  
Mitchell Award notes that the parties have defined relief and rotational assignments in  
Article 65.1 (by which he must have meant Article 65.2), and that if the parties had  
wanted relief or rotation to constitute a form of vacancy it would have been easy for them  
to say so and they have not. This is true, but because relief and rotation assignments are  
not assignments to a “vacancy” there was no need for the parties to do so.  
98.  
When employees go on vacation or are temporarily absent from work due to  
illness or injury their positions are not left vacant within the labour relations meaning of  
the term. An employee’s temporary absence from work does not create a vacancy. It  
leaves a temporary staffing gap that the collective agreement contemplates can if  
necessary be filled with a relief assignment. By collective agreement definition a relief  
assignment is not an assignment to a vacancy, either within the meaning or Article  
35  
10.3(a) or at all. Similarly, an employee who accepts a rotation assignment has an Article  
65 qualified right of return to the regular position s/he leaves behind a staffing gap that  
can be filled with a relief assignment, not a vacancy that must be filled in accordance  
with the Article 65.6 selection provisions.  
99.  
In summary, the full answer to the Article 10.3 question before Arbitrator  
Mitchell is that rotations are by collective agreement definition not assignments to  
vacancies and therefore 10.3(a) does not apply (and grievance therefore dismissed).  
Notwithstanding the sometimes awkward language used, there is nothing in the collective  
agreement that suggests that the terms “vacancy” or “vacancies” are used in other than  
their normal labour relations sense; that is, that vacancies are empty ongoing positions.  
The Article 65.2 definition of rotations specifies that such assignments are not used to fill  
staffing gaps in ongoing positions. As per the more fulsome analysis below, a rotation  
cannot be used to fill a vacancy. Article 65 read as a whole requires a vacancy to be  
filled using the comprehensive selection process stipulated by Article 65.6.  
(c)  
The Collective Agreement Interpretation and Application  
(i) The Society’s Complaint  
100. To repeat (because of the length of this Award to this point), the Society’s  
complaint in the grievance as filed is that since at least February 2019 OPG has been  
using continuing or “perpetual” rotation assignments to staff ongoing MP-4 Coordinator  
Real Time Operations Team positions for more than 2 years without the Society’s  
consent, contrary to Article 65.5.2. The grievance claims that rotations are not supposed  
to last longer than 2 years, and that the expectation is after 2 years a rotation assignment  
either becomes a “permanent/regular” position or the rotation stops. The grievance  
alleges that during 2019-2021 OPG used 3 “perpetual rotations” in the Real Time  
Operations Team to “plug a permanent hole created in the MP-4 shift schedule after the  
MP-4 regular staff complement was reduced from 6 to 5 during Q3 2019”; to provide  
coverage while regular MP-4 and MP-5 shift staff trained for MP-5 and MP-6 positions;  
to provide coverage for regular MP-5 and MP-6 positions whose incumbents were  
assigned to other short-term work; and to provide coverage for the multi-year absences of  
employees Beard, Wong and Sauer.  
101. The grievance further complains that OPG employed step-ups that are meant to be  
used as temporary stopgaps and NBAs that do not exist as a job classification in the  
collective agreement to fill staffing holes in the shift schedule created when regular MP-  
4’s, MP-5’s and MP-6’s were stepped-up to train or to do project work. The Society  
claims that training and project needs must be filled on a relief, rotation,  
36  
regular/permanent or temporary basis, and that formal offer letters must being issued for  
the latter three “categories”.  
102. Although the Society’s grievance does not specifically allege that any use by OPG  
of rotations to fill staffing gaps in the Real Time Operations Team is contrary to the  
collective agreement, as the matter infolded before me, the Society alleged just that;  
namely, that any use of rotations to fill staffing gaps in ongoing positions (in this case in  
the Real Time Operations Team MP-4 positions) is contrary to Article 65.2. This  
allegation was pursued in the Society’s November 1, 2021 Hearing Brief delivered well  
before the January 12, 2022 hearing (particularly in paragraphs 20-22, 27, 36 and 38),  
and in its oral submissions. And OPG joined issue with the Society in that respect.  
103. The Society’s claim is therefore four-fold:  
first, that rotations cannot be used to fill staffing gaps in ongoing positions;  
second, that back-to-back continuous rotation assignments to fill the same staffing  
gap for more than 2 years without its consent are not permitted in any event, even  
if the assignments are filled by different employees;  
third that rotation assignments that last longer than 2 years without the Society’s  
consent become permanent positions that must be posted and filled in accordance  
with Article 65.6; and,  
fourth, that NBAs and step-ups are not work classification or assignment  
categories independent of the relief, rotation, regular/permanent or temporary  
assignments identified in the collective agreement, and that what OPG has been  
referring to as NBAs and step-ups must be properly designated as one of the  
classifications identified in the collective agreement.9  
(ii)  
The Operation of Article 65  
104. The necessary analysis involves some repetition.  
9 I note that the collective agreement distinguishes between “Temporary Employees” and temporary  
assignments. Pursuant to Article 3 a temporary employee (which includes the sub-category of “Student  
Employee” is “an employee who is hired for short-term work assignment which is not ongoing (i.e.  
normally 12 months or less and not extending beyond 24 months).” This is different from a temporary  
assignment of a “Regular Employee”, which is effectively what is in issue in this case.  
37  
105. Notwithstanding the numerous references to “vacancies” and “assignments” in  
other subject areas of the collective agreement, the only provision that speaks to the use  
of rotations is Articles 65, and the only reference to “vacancies” in the provision is in  
Article 65.6. As should be apparent from my analysis of the Bloch and Mitchell Awards,  
I am satisfied these provisions read as whole provide the appropriate collective agreement  
interpretation context.  
106. The first thing that must be acknowledged is that the Article 65 language selected  
by the parties is sometimes less than apt for the apparent purpose. However, this is not so  
much so that it makes the intended interpretation or application of the provisions unclear.  
(And I note that neither party alleged ambiguity, or its often pleaded in tandem partner  
estoppel.)  
107. The heading of Article 65 is “Vacancies (Relief, Rotations and Selections)”. It is  
apparent that a better heading would simply be “Relief, Rotations and Vacancies”  
because it is clear that relief and rotation are intended to be temporary short-term  
assignments intended to fill temporary staffing gaps in an ongoing position in the case of  
relief, or to staff temporary non-ongoing work programs in the case of rotations. Neither  
relief nor rotation assignments are intended to fill “vacancies”.  
108. The definitions in Article 65.2 read together with Articles 65.4.1 and 65.4.3 in the  
case of “relief” and Article 65.5 in the case of “rotations” are the key to discerning the  
meaning and application of Article 65 as a whole.  
109. The heading of Article 65.1 is “Intent”. It states that the purpose of Article 65 is  
to: “To provide open, fair access to career opportunities and enable OPG to optimize  
staffing requirements over time.” Such general statements of collective agreement intent  
serve to inform the interpretation of the substantive operational provisions in the Article.  
Insofar as specific operational provisions indicate a more focused attention by the parties,  
the rules of collective agreement interpretation require that in the event of conflict they  
prevail over a general statement of intent.  
110. Article 65.2 begins by defining “Relief/Rotations” together as short assignments  
to duties outside of normal job duties. Article 65.2 then more specifically defines and  
distinguishes between “relief” and “rotations”. It specifies that “relief” assignments are  
short-term temporary assignments normallyup to 3 months long to positions that are or  
are expected to be ongoing positions. It more specifically defines “rotations” as  
assignments normally for greater than 3 months but not more than 2 years in positions not  
expected to be ongoing.  
38  
111. Article 65.4.1 further refines the Article 65.2 definition of “relief” by making it  
clear that the purpose of relief is threefold:  
(a)  
(b)  
to cover staffing gaps due the sort-term absences,  
to bridge staffing gaps (created by release delays, for example) for  
selections or rotations (which also serves to underline the distinction  
between relief and selections for vacancies and rotation assignments, as  
well as between vacancies and rotation assignments), and  
(c)  
for short-term emergency situations.  
112. Article 65.4.2 stipulates that the process for selecting employees for a relief  
assignments “should be” quick and provide fair opportunities to employees. This gives  
OPG very broad latitude. Article 65.4.3 permits a relief assignment to be extended  
beyond the Article 65.2 three month limit by agreement, and makes it clear that absent  
agreement the duration of relief assignments is limited to “90 days”. It is unfortunate that  
the parties used “3 months” in Article 65.2 and “90 days” in Article 65.4.3, but being the  
more specific provision and since the number of days in a month varies Article 65.4.3  
must prevail.  
113. As already noted above, Article 65.4.4 operates to prohibit OPG from using  
continuous relief assignments to avoid “advertising” (i.e. posting) rotations or “ongoing  
positions” (i.e. permanent position vacancies). This serves to emphasize the distinction  
between relief assignments and filling ongoing positions.  
114. Article 65.4.5 straightforwardly deals with pay treatment for relief assignments.  
115. The Article 65.2 definition of “rotations” must be read together with the extensive  
provisions in Article 65.5 for rotations within the Society bargaining unit. Article 65.5  
begins by stating, as its heading suggests, that it does not apply to rotations outside the  
Society’s jurisdiction and that Article 5 does (which indicates that the parties  
contemplated Article 65 defined rotation assignments outside the Society’s bargaining  
unit). Article 65.5 further refines the definition of “rotations” by stipulating that:  
Rotations are used for situations between short-term relief and ongoing positions.  
That is, rotations are not to be used for relief purposes or to staff ongoing (permanent)  
positions. Article 65.5 also provides that upon completion of a rotation assignment a  
non-surplused employee “will return to their original position or a comparable position  
normally within the sending unit …” By operation of Articles 5.1.3 and the exclusion in  
65.5 read together, an employee assigned to a rotation outside the Society’s bargaining  
39  
unit does not have this “return to position” guarantee – or any other Article 65.5  
entitlement.  
116. Article 65.5.1 sets out 7 “purposes” of rotations that the heading of the provision  
describes as “principles” consistent with the Article 65.1 general statement of intent.  
OPG relies on the “principles” or purposes or rotations outlined in Article 65.5.1,  
particularly clauses (b) and (g).  
117. The essence of the stated Article 65.5.1 “principles” is that the purpose of  
rotations is to promote employee career development and provide OPG with workplace  
management flexibility including allowing OPG to staff temporary work programs and  
work load requirements, and give OPG staffing flexibility for regular positions as a  
result of employees being provided rotational opportunities and temporary relief  
assignments” (clauses 65.5.1((b) and (g), respectively).  
118. A stated purpose of a collective agreement provision and the substantive language  
of the provision must be read in a contextually coherent manner. There is nothing in any  
of clauses 65.5.1(a) through (f) that is inconsistent with the Article 65 definitions of relief  
as “assignments normally greater than 3 months but not exceeding 2 years in duration in  
positions which are not expected to be ongoing” (Article 65.2, emphasis added) or  
rotations “used to accomplish work for situations that occur between short-term relief and  
ongoing positions” (Article 65.5, emphasis added). However, clause 65.5.1(g) states that  
a purpose of rotations is to provide “flexibility in resourcing regular positions as a result  
of employees being provided rotational opportunities and temporary relief assignments”.  
The plainly stated clause 65.5.1(g) purpose is to permit ongoing positions left temporarily  
unstaffed to be backfilled with a rotation in, which on the evidence is what OPG has been  
doing in the Real Time Operations Team. This is inconsistent with the foundational  
Article 65 definition of rotations as temporary assignments in non-ongoing positions  
between relief and ongoing positions because “regular” can only be read as “ongoing” or  
“permanent” (and certainly not as temporary).  
119. Recall that a fundamental rebuttable presumption in the search for objective  
contextual labour relations collective agreement meaning is that the parties purposely  
chose the language used to express their shared intention. A statement of purpose is a  
statement of intention. But the clause 65.5.1(g) purpose is irreconcilably inconsistent  
with the collective agreement substantive definition of rotations a statement of the  
parties shared intention of the use of rotations derived from Article 65.2 and the  
opening paragraph in Article 65.5 read together.  
40  
120. The parties could not have intended this irreconcilable internal collective  
agreement conflict. They cannot in any event coexist. Which one must give way? I am  
satisfied that the parties could not have intended a 3-line statement of purpose to turn the  
operation of a comprehensive 8-page Article 65 on its head. Giving clause 65.5.1(g)  
precedence would require reading “which are not expected to be ongoing” and “between  
short-term relief and ongoing positions” in Articles 65.2 and the opening paragraph of  
Article 65.5 respectively out of the foundational definition of “rotations”. It would also  
effectively eliminate the collective agreement distinction between relief and rotations as a  
practical matter (other than perhaps for step-up purposes). On the other hand, giving  
meaning to the collective agreement definition of rotations would effectively render  
clause 65.5.1(g) null and void. It can only be one or the other.  
121. The reference to “regular position” in the latter is problematic because the plain  
and ordinary meaning of “regular” is “usual, normal” – or dare I say it: “ongoing”, and  
Articles 65.2 and 65.5 read together specify that rotations are not to be used to fill  
ongoing positions. As noted above, an articulated collective agreement “principle” or  
“purpose” must give way to a specific contradictory substantive provision. Article  
65.5.1(g)  
122. A grievance arbitrator does not have jurisdiction to amend a collective agreement.  
But if faced with an irreconcilable conflict within a collective agreement provision, the  
arbitrator must choose the interpretation that best fits the design and structure of the  
provision read as a whole. I am satisfied that permitting the clause 65.5.1(g) tail to wag  
the Article 65 dog would do far more violence to the apparently intended operation of the  
collective agreement than doing the opposite. I am satisfied that the comprehensive  
substantive provisions in Article 65 must take precedence. The incongruous purpose  
clause 65.5.1(g) can therefore be given no collective agreement effect and must be  
considered null and void.  
123. Returning for a moment to “relief”, the use of relief to cover the short-term  
staffing gaps for rotations purpose articulated in Article 65.4.1(b) creates a prima facie  
conflict because the use of relief is by collective agreement definition limited to  
temporarily staffing a position that is or is expected to be an ongoing position and  
“rotations” are by collective agreement definition (Articles 65.2 and 65.5 read together)  
assignments to positions that are not or expected to be ongoing. This part of Article  
65.4.1(b) must mean that relief can be used to fill a gap in an ongoing position left as a  
result of an employee temporarily leaving the ongoing position on a rotation assignment.  
124. Article 65.5.2 speaks to the manner in which rotation assignments are filled  
depending on whether the assignment is expected to last less than 6 months or 6 months  
41  
or longer. It specifies that absent the Society’s agreement rotations expected to last 6  
months or longer must be posted (meaning that rotations for periods less than 6 months  
need not be posted regardless of the Society’s wishes), and that the scope of a rotation  
posting is up to OPG to determine. Nothing prevents OPG from posting a rotation  
expected to last less than 6 months, but it is not required to do so. Article 65.5.2 also  
specifies that a rotation “will not” continue for more than 2 years absent “mutual  
agreement” (i.e. unless the Society agrees), unless it is identified (by OPG) as an  
“ongoing training position”.10 Article 65.5.2 also specifies what a job posting “should”  
include.  
125. Article 65.5.3 describes the “optimal” selection process for a rotation, and  
specifies that rotations will be voluntary, without distinguishing between rotations on the  
basis of their expected length or whether or not they are posted. This means that all  
rotations within the bargaining unit are voluntary.  
126. Article 65.5.4 specifies that employees selected for a rotation “will be” provided  
with a letter that states the “nature, terms and conditions of the assignment, which  
“should be mutually acceptable” in advance of the rotation. This provision also applies  
to all rotations, regardless of their expected length or whether or not they are posted.  
Although it would be good labour relations practice to do so, Article 65.5.4 does require  
OPG to provide the Society with a copy of such letters. The last sentence states that the  
terms and conditions of a rotation assignment “should be mutually acceptable”. Since the  
Society is entitled to Article 65.3 notice of a rotation assignment and the Society is not  
mentioned in this provision, I interpret that as meaning mutually acceptable to OPG and  
the employee (who may of course week advice from the Society).  
127. Article 65.5.5 alters the statement in the opening paragraph of Article 65.5 that an  
employee who accepts a rotation assignment “will returnto their original or a  
comparable position “normally within the sending Unit” to a guarantee that the employee  
“can return” to their original position “if available”, or to a comparable position  
“normally within the sending Unit”. I need not delve further in the difference or how it is  
resolved for purposes of this Award although Article 65.5.5 is the more specific  
provision.  
128. Article 65.5.6 specifies that rotation terms and working conditions “will” comply  
with all applicable collective agreement provisions, which must include Article 66.4 if  
the rotation assignment is to a higher-rated job.  
10 There is no evidence or suggestion that any of the Real Time Operations Team positions have been  
designated “ongoing training positions”.  
42  
129. Throughout Article 65.5, the parties have used the terms “should” and “will”  
instead of “must” or “shall”. There is a line of arbitral authority (much of it old)  
concerning the distinction, much of which has an “angels dancing on the head of a pin”  
quality to it. The generally accepted plain and ordinary meaning of “should” is that it is  
the past tense of “shall” and expresses a duty or obligation, and effectively also means  
“must”. Similarly, a common use of “will” is as an auxiliary to express compulsion, as in  
commands, effectively meaning the same thing as “shall” or “must”. I am satisfied that  
for purposes of Article 65, “should” and “will” mean that the requirements the terms are  
attached to are compulsory, not optional. Similarly, “will not” is equivalent to  
prohibited, so that “…the rotation will not continue beyond two years …” means that a  
rotation beyond 2 years in duration is prohibited (subject to the mutual agreement and  
identified training position exceptions).  
130. Although Article 65.5 specifically states that Article 5 applies to rotations  
“outside the Society’s jurisdiction”11, nothing in Article 65 mentions relief assignments  
outside of the Society’s bargaining unit, and Article 5 only refers to temporary  
assignments outside of the Society’s bargaining unit without reference to either “relief”  
or “rotations”. The point is that the language of Article 5 does not limit temporary  
assignments to rotations. There is nothing in Article 5 that suggests that a bargaining unit  
employee cannot be given a relief assignment outside of the bargaining unit although  
given the structure of the workplace that would be odd. The fact that there is no  
reference in Article 65.4 to Article 5 similar to the statement in Article 65.5 is only  
suggestive, but Article 5.1.3 states that unless “otherwise specified” a Society-  
represented employee temporarily assigned outside the bargaining unit continues to be  
entitled to the benefit of the listed collective agreement provisions (which includes  
Article 65), and the exclusion of Article 65.4 is not specified. Pursuant to Article 5.1.3,  
Article 65 would therefore apply to a relief assignment (i.e. a temporary assignment to an  
ongoing position) outside the bargaining unit.  
131. What the exclusion of Article 65.5 from application to assignments “outside the  
Society jurisdiction” means is that while Article 65.2 continues to apply, there is no  
requirement that “at the completion of the rotation , the employee will return to their  
original position or a comparable position …” (Article 65.5); that the Article 65.5.1  
“principles” do not apply; that such rotations need not be voluntary (Article 65.5.3); that  
employees so assigned are not entitled as of collective agreement right to an Article  
11 The heading of Article 5 is “Temporary Assignments”. In the opening paragraph the parties  
acknowledge that bargaining unit employees may be temporarily removed to perform work outside of the  
bargaining unit (and that employees from outside the bargaining unit may be temporarily assigned to  
bargaining unit work). The Article 5.1 provisions use the term bargaining unit and “Society jurisdiction”,  
which is necessary because as noted above Article 5.1.2 provides that the Society continues to have  
jurisdiction over employees removed from the bargaining unit for (only) the first 3 months of a temporary  
assignment outside of the unit and is entitled to dues for the entire duration of such an assignment.  
43  
65.5.4 letter, or to the more specific Article 65.5.5 guarantee of return to the employee’s  
original or a comparable position; and that the Article 65.5.6 terms and working  
conditions provision does not apply. However, because Article 65.4 is not excluded all  
of its terms apply to relief assignments outside the bargaining unit.  
132. Further to my commentary on the Mitchell Award, above, there is no reference to  
any version of the term “vacancy” or “vacancies” anywhere in Articles 65.2, 65.4 or 65.5.  
The first time “vacancies” appears is in Article 65.6.1, which distinguishes between  
“vacancies for assignments” and relief and rotation. Notwithstanding the awkward  
wording of the Article 65.6 heading and in the opening paragraph in Article 65.6.1, it is  
clear that Article 65.6 does not apply to relief or rotation assignments. This is consistent  
with the “more specific provision” rule of interpretation which means that the Article 65  
selection processes specific to relief and rotations apply to them, not Article 65.6.  
133. To repeat, the plain and ordinary labour relations meaning of “vacancy” is “an  
unoccupied position”. The reference to “ongoing positions” is important. The plain and  
ordinary meaning of “ongoing” is “continuing without termination or interruption”. A  
labour relations synonym is “long-term” or “permanent”. A labour relations antonym is  
“short-term” or “temporary”. The significance of this is that the foundational definitions  
of Article 65 make it clear that “relief” is available to temporarily fill staffing gaps in  
positions that are or are expected to be ongoing (i.e. long-term, permanent) positons on a  
short-term basis only, that the use of “rotations” is limited to temporary short-term  
assignments to positions that are not ongoing, and that neither of them is intended to fill  
“vacancies”. Article 65 read as a whole must mean that neither relief nor rotations can be  
used to fill a “vacancy” within the meaning of the collective agreement. That is what  
Article 65.6 is for.  
134. I can now turn to Article 65.3 which I skipped over in my chronological review of  
Article 65. There is very little to add to the commentary on the Bloch Awards in  
paragraphs 77-80, above. I am satisfied that Article 65.3 means that OPG management  
must provide the “local Society representative” (which presumptively means the Society  
Local Vice-President or Unit Director, or their delegate) with 2007 Bloch Award  
approved notice of the nature, expected duration, selection process, and “whether there is  
an expectation that the work assignment will result in an ongoing position” in the case of  
every work assignment relief and rotation assignment expected to last longer than 10  
days. This means every such relief and rotation assignment within the Society bargaining  
unit pursuant to Article 65.  
135. As already noted above, Article 65.3 does not apply to assignments outside the  
Society bargaining unit. Those are governed by Article 5, more particularly Article 5.1.1  
44  
which specifies that the Society shall be given the specified prior notice of any longer  
than 3 months temporary assignment outside the bargaining unit. The necessary  
implication is that the Society is not entitled to notice of such assignments of for 3  
months or less. As a notice provision specific to temporary assignments outside the  
bargaining unit Article 5.1.1 applies and Article 65.3 does not.  
136. In the Article 65.3 notation in parentheses after “to discuss the nature of the  
requirement” the parties chose to use the phrase “e.g. relief, rotation”, instead of “i.e.  
relief, rotation”. Using “e.g.” prima facie suggests there may be other forms of  
temporary assignment to which the provisions applies, as opposed to “i.e.” which would  
suggest the application of the provision is limited to the specified assignments. I am  
satisfied that in this collective agreement it doesn’t matter because relief and rotation are  
the only collective agreement sanctioned forms of temporary assignment.  
137. “Non-Base Assignment”, “NBA”, and “step-up” are not terms found anywhere in  
the OPG-Society collective agreement. Whether Arbitrator Bloch imposed or thought it  
appropriate to accept the parties’ apparent agreement to adapt a NBA form used by OPG  
in its dealings with the PWU for use under the Society collective agreement in his 2007  
Award, this does not give the form any special status under the Society collective  
agreement. It certainly didn’t create a separate category of temporary assignment.  
Subject to limited statutory prohibitions, the parties are free to amend their collective  
agreement as they wish, but they must do so directly themselves, not surreptitiously  
through a grievance arbitrator’s Award, at least not through one that is not specifically on  
consent. As a rights arbitrator, Arbitrator Bloch had no jurisdiction to amend the  
collective agreement, and his 2007 Award did not make the NBA form part of the OPG-  
Society collective agreement.  
138. Of course this does not mean that OPG cannot use the NBA form for collective  
agreement administrative purposes. The real question is: what is an “NBA”? A NBA is  
any assignment of a bargaining unit employee away from their regular, original, or base  
position (which 3 terms are synonymous for purposes of this collective agreement). The  
collective agreement forms of NBAs are relief and rotation assignments.  
139. As for “step-ups”, what are they really? Step-ups have no independent collective  
agreement status as such. They are clearly a form of relief assignment which in my many  
years of experience with the OPG-Society collective agreement has long used to fill  
temporary staffing gaps in ongoing (permanent) positions.  
140. All bargaining unit employees are either probationary, regular or temporary  
employees (the latter a category that includes students Article 3). An “employee” is not  
45  
an “assignment”, so although a temporary employee” (i.e. “… an employee who is hired  
for short-term work assignment which is not ongoing (i.e. normally 12 months or less and  
not extending beyond 24 months) …” – Article 3.3.1) is an employee who is by  
collective agreement definition a temporary hire to perform temporary work in  
accordance with Article 34, this has nothing to do with temporary assignments of a  
“regular” employee (or technically, but as a practical matter unlikely, a probationary  
employee). Articles 5 and 65 apply to temporary assignments to regular (or  
probationary) employees. Articles 3 and 34 do not.  
141.  
In denying that the collective agreement limits it to relief, rotation, and regular  
position options to fill vacancies, or that the use of NBAs constitutes a violation of  
Article 65 (paragraph 58, above), OPG points to Article 66.4 “Temporary Assignment in  
a Higher-Rated Job”. As at the heading of Article 66 suggests (“Salary Treatment for  
Promotions, Temporary Assignments, Lateral Transfers and Demotions”), this provision  
speaks to the pay treatment of a bargaining unit employee temporarily assigned to a  
higher-rated job which could be a step-up relief assignment or a rotation assignment,  
and is not at all inconsistent with the analysis above. It does not create or suggest a  
“temporary” employee or work classification, either separate from Articles 3 and 34 or at  
all.  
142. I am satisfied that however they may be colloquially referred to, bargaining unit  
employees have either regular positions or temporary assignments away from their  
regular positions. By collective agreement definition, “relief” and “rotation” fully  
occupy the temporary assignment field. They are the only forms of temporary collective  
agreement assignment (albeit up to 2 years or even longer on agreement in the case of  
rotations). There may be forms of “relief” or “rotations” to which another workplace  
label is applied, but however they are labelled for OPG administrative purposes, for  
collective agreement purposes temporary assignments are one or the other. Like  
Shakespeare’s metaphorical rose, the label does not determine or change the collective  
agreement nature of an assignment. Calling an assignment a step-up or a NBA isn’t  
determinative of its collective agreement status. It is the nature of an assignment, not the  
label, that determines its collective agreement character.  
143. The collective agreement as written does not permit OPG to use rotations to fill  
staffing gaps in ongoing positions. The collective agreement limits OPG to relief  
assignments for that purpose, however they may be colloquially or administratively  
labelled. As such, they are subject to the advance planning notice requirements of Article  
65.3 and the limits specified in Articles 65.2 and 65.4 read together.  
(iii) Application to the Society’s Complaint  
46  
(a) Summary Dispositions  
144. Several issues can be disposed of summarily.  
145. First, OPG noted but did not seriously pursue any objection to the post-grievance  
evidence presented (which includes evidence of rotations that began before the date of  
the grievance but either ended or are scheduled to end after that date). OPG also  
responded to that evidence in its Hearing Brief and oral submissions. In any event, it is  
well established that “subsequent-event” (or post-grievance) evidence is admissible in a  
grievance arbitration proceeding if it helps inform the determination required (per  
L’Heureux-Dubé J. writing for the unanimous Supreme Court of Canada in Cie minière  
Québec Cartier v. Quebec (Grievances arbitrator), 1995 CanLII 113 (SCC), [1995] 2  
SCR 1095 at para. 13). I am satisfied that the post-grievance evidence presented serves  
to inform the determination of the grievance herein by providing a more complete picture  
of the dispute for purposes of a better going forward determination for the parties.  
146. Second, I note that OPG has not hinted much less specifically objected to the  
Society pursuing a complaint that Article 65 operates to prohibit OPG from using  
rotations to fill staffing gaps in ongoing Real Time Operations Team positions  
(specifically the MP-4 Coordinator position gaps created by incumbents being stepped-up  
to fill MP-5 Specialist position staffing gaps created by some combination of step-ups in  
and rotations out of the Team). Not only has OPG not objected that this constitutes an  
impermissible expansion of the grievance, it responded to the complaint and joined issue  
with the Society in its Hearing Brief and oral submissions. In any event, a proper  
consideration of the meaning and application of Article 65 naturally brings this  
component of the Society’s complaint into play. In my view, it would be overly technical  
and a disservice to the parties to put artificial interpretation boundaries on this aspect of  
Article 65, and I consider it properly before me.  
147. Third, there is no merit to OPG’s objection that the Society’s complaint about the  
use of step-ups is outside of the scope of the grievance as filed. The grievance does in  
fact include a complaint about OPG’s use of step-ups in the italicized “note”. It is also  
well established that grievance arbitrators should take a non-technical approach to the  
grievance brought before them so that the real dispute between the parties is fully  
determined. Further, although the Society’s Hearing Brief focuses entirely on rotations,  
OPG’s Hearing Brief makes no fewer than 15 references (including footnotes) to step-ups  
and D’Cunha testified about them, so it was perfectly reasonable for the Society to join  
issue with OPG with respect to the use of step-ups in cross-examination and oral  
submissions. Finally, OPG’s admitted long-standing use of step-ups is necessary to the  
47  
proper consideration of the meaning and application of the provisions of Article 65 read  
as a whole. OPG’s objection to the Society making an issue of the use of step-ups is  
dismissed.  
148. Fourth, the Society claims that the result of the April 3-September 23, 2019 email  
exchange between Rosati and Mastorakos was an agreement to convert one of the regular  
Real Time Operations Team MP-4 positions to a MP-5 position (paragraphs 28 and 38  
above). With respect, I do not read the email exchange as constituting such an  
agreement. The Society’s concurrence to OPG’s proposal to use stepped-down MP-5s to  
cover MP-4 gaps in the schedule does not amount to an agreement to convert a MP-4  
position to a MP-5.  
149. The determination of staffing levels and complements is a prima facie  
management right. There is no evidence, and I was not referred to any collective  
agreement provision or other source for Mastorakos’ April 3, 2019 email assertion that a  
Real Time Operations Team “full shift complement of MP-4’s requires 5.2 FTE’s” or  
requires the Society’s agreement to a change in complement, or that otherwise that  
restricts OPG’s management right in that respect. Even if the email exchange could be  
construed as a request for the Society’s agreement to Real Time Operations Team  
scheduling, that does not mean that OPG had to ask, or that the Society’s agreement was  
required. Nor does it mean that OPG cannot make complement or scheduling  
adjustments as its sees fit subject of course to applicable collective agreement  
provisions, including Article 65.  
(b) Disposition of Specific Issues Raised By the Parties  
150. The specific issues raised by the parties in this case are identified by the  
summaries of their submission in paragraphs 41 and 60, above.  
151. The only collective agreement precondition for relief or rotation assignments  
within the bargaining unit is that OPG must give the Society Article 65.3 notice in  
accordance with the 2007 Bloch Award of such assignments “of greater than ten (10)  
working days duration”. I agree with OPG that it is entitled to determine the level of  
relief or rotation assignment.  
152. I also agree with OPG that there is no collective agreement limitation on the  
number of rotation assignments an employee may accept so long as all applicable  
collective agreement provisions are complied with.  
48  
153. I agree with OPG that an employee who accepts a rotation assignment has an  
Article 65 right to return to their base or “original” position, if it is available, or to a  
comparable position if it is not (opening paragraph of Article 65.5 and Article 65.5.5) if  
the rotation is within the Society bargaining unit. However, rotations outside the  
bargaining unit are governed by Article 5 and an employee who accepts an assignment  
outside the bargaining unit, whether a rotation or otherwise, does not have a guaranteed  
original or comparable position right of return. This does not mean that a staffing gap  
left as a result of a bargaining unit employee accepting a rotation assignment outside the  
bargaining unit necessarily constitutes a collective agreement “vacancy” that must be  
posted and filled in accordance with Article 65.6. OPG may treat the gap as temporary  
and fill it with a relief assignment in accordance with Article 65.4, in which case the  
employee who rotated out may be permitted to return to it in OPG’s reasonably exercised  
discretion. Or OPG may treat it as a vacancy which must be filled in accordance with  
Article 65.6. However, the original position of an employee who has rotated out of the  
bargaining unit cannot be filled “continuously” with relief assignments (Article 65.4.4). I  
will come to what this means below.  
154. As per the above, neither a rotation nor a relief assignment creates a collective  
agreement “vacancy” in the position the employee who takes the assignment leaves  
behind. I agree with OPG that “Article 65 does not require a “vacancy” created by either  
a rotation in or a rotation out to be posted” – because no vacancy is created until it is  
clear that the employee who left a regular position to take e temporary assignment will  
not be returning to it. Vacancies must be posted (Article 65.6), but a rotation out does not  
by itself create a “vacancy” within the meaning of the collective agreement. It creates a  
staffing gap that can be filled with a relief assignment, which the collective agreement  
does not require be posted, but Article 65.4.3 requirements and limitations must be  
respected. A “rotation in” (to a non-ongoing position) must be posted if the assignment is  
expected to last 6 months or longer (Article 65.5.2). The Article 65.3 notice to the  
Society requirement applies in every case (of a 10 days or longer assignment).  
155. OPG’s Hearing Brief describes two forms of “NBA”: a step-up to a higher level  
assignment to a different role within the employee’s work group; and an assignment of an  
employee out of their work group for more than 10 days but less than 6 months. OPG  
does not suggest that a step-up is equivalent to a rotation assignment, and on the evidence  
step-ups have not been treated as rotations, which is a good thing because they are not.  
156. As indicated above, I agree with the Society that every “assignment” must fall  
into a collective agreement category. “Step-up” and “NBA” are not categories of  
assignments recognized in the collective agreement. All assignments away from an  
“original” or regular bargaining unit position are NBAs. The ongoing position gap filling  
49  
nature of a step-up places it into the relief assignment category (as defined in Articles  
65.2, 65.4.1 and 65.4.3 read together). An assignment designated as a “NBA” to a non-  
going position is in the nature of a true rotation assignment. All “NBAs”, including step-  
ups, are subject to Article 65.3 notice requirements, and the requirements and limitations  
in Article 65.  
157. As relief assignments, step-ups are subject to Articles 65.2, 65.3 and 65.4. That  
is, step-ups are limited to the more specific (than Article 65.2) Article 65.4.3 90-day  
duration limitation, subject to extension for a period of up to one year if the Society  
agrees but for no longer. Step-ups of greater than 10 working days are subject to the  
Article 65.3 notice requirement in accordance with the 2007 Bloch Award.  
158. I agree with OPG that the NBA form is an administrative tool sanctioned by the  
2007 Bloch Award. I agree that the collective agreement does not require that a NBA  
relief assignment be posted. The collective agreement does not require a NBA rotation  
assignment within the bargaining unit that is not expected to last 6 months or longer to be  
posted.  
159. Having regard to the evidence of the manner in which the collective agreement  
has been applied by the parties, I agree that OPG is permitted to use step-ups to higher  
MP levels within a work group for the purposes described in the evidence but not as or  
to the extent described in the evidence. As a form of relief assignment, step-ups must  
comply with the requirements of Articles 65.3 and 65.4. D’Cunha’s evidence is that  
contrary to OPG’s assertion the Real Time Operations Team schedules do not identify  
step-ups. I agree with the Society that the fact that close examination by the Society  
Delegate who happens to be on the Team may reveal step-ups does not relieve of its  
Article 65.3 advance notice obligations.  
160. I find OPG’s claim that the Society has not previously taken issue with OPG’s  
more than 20-year use of NBAs as assignments to a different role within the employee’s  
work group, usually as a step-up, or as assignments outside of the employee’s work group  
for more than 10 working days and less than 6 months puzzling, if not troubling. It was  
Society’s complaints about OPG ignoring its Article 65.3 obligations led to the 2007,  
2008 and 2013 Bloch Awards. To repeat, Article 65.3 applies, and applied at all material  
times, to step-ups “of greater that ten (10) working days duration”.  
161. On the evidence, I find that OPG did not give the Society notice of most the step-  
ups identified in this proceeding, either in the form approved by Arbitrator Bloch or at  
all. The fact that the Society may be able to discover step-ups on its own doesn’t absolve  
50  
OPG of its Article 65.3 obligations or mitigate its liability for failing to comply with  
those obligations.  
162. On the facts presented, OPG has not been giving the Society Article 65.3 advance  
planning notice of many Article 65 assignments, not just step-ups. As per the above,  
Article 65.3 requires 2007 Bloch Award approved notice to the Society of every longer  
than 10 working days relief and rotation work assignment (whether referred to as such, or  
as a NBAs or step-ups, or whatever) within the bargaining unit. Article 5.1.1 requires  
prior notice to the Society of every bargaining unit employee temporary assignment  
outside the bargaining unit exceeding three months’ duration. Perhaps OPG has been  
providing such notice. I have no evidence or suggestion either way.  
163. More specifically, Wong’s moves to a “RT Manager” position and to Artura were  
both temporary assignments outside the bargaining unit and as such were wholly  
governed by Article 5 (which I repeat contains no reference to rotations). The same is  
true for Beard’s assignment as “Settlements Manager” and Sauer’s assignment to  
“Market Affairs”. Because these assignments were for longer than 3 months, OPG was  
obliged by Article 5.1.1 to give the Society prior notice of them. Although the evidence  
includes an offer letter to Wong for his move to the Sr. Manager Real Time Market Ops  
position and an offer letter to Beard for her move to the Senior Manager Settlements  
position, on their face neither of these was copied to the Society. More importantly,  
Article 5.1.1 requires prior notice, not coincident or subsequent notice, and there is no  
evidence that any prior notice was given. There is similarly no evidence of prior notice  
to the Society of Wong’s move to Artura. If OPG failed to give the Society Article 5.1.1  
notice of these movements it violated the collective agreement. However, the parties  
paid no attention to Article 5 in this proceeding, and I do not consider it appropriate to  
make any finding of OPG guilt in that respect.  
164. OPG asserts and the Society does not deny that the Market Renewal Project is a  
temporary work program. On the evidence, Beard’s move to the Market Renewal Project  
bargaining unit position fits squarely within the collective agreement definition of  
rotation assignment. However, the combination of OPG’s Excel spreadsheet and  
D’Dunha’s testimony establishes that this temporary short-term assignment began in or  
about mid-September 2020 and is scheduled to end at the end of April 2023 a period of  
some 31 months. Although the evidence is that the “rotations in” to the Real Time  
Operations Team were used to cover the staffing gaps left by Wong’s and Beard’s  
assignments out, there is no evidence of any Article 65.3 notice to the Society of Beard’s  
assignment to the Market Renewal Project (a position within the bargaining unit). Nor is  
there any evidence that OPG has obtained the Society’s Article 65.5.2 agreement to  
dispense with a posting or of any Society agreement to the extension of the assignment  
51  
beyond 2 years. OPG therefore violated Article 65.3 and is potentially non-compliant  
with Article 65.5.2 (potentially because the provision does not specify when the Society’s  
agreement must be obtained).  
165. It is clear that OPG has been using rotation assignments to fill staffing gaps in  
ongoing MP-4 positions in the Real Time Operations Team. This is a violation of Article  
65. The reason for a staffing gap in an ongoing position is irrelevant. Even if a staffing  
gap in an ongoing position is created by a legitimate rotation out, it cannot be filled by a  
rotation in. Article 65 requires that temporary staffing gaps in ongoing positions only be  
filled with relief assignments in accordance with Article 65.4. That is what the parties  
have agreed to.  
166. Toor’s December 2029-February 2020 NBA to the Real Time Operations Team,  
Akanni’s NBA assignment to the Real Time Operations Team in April 2021, that OPG  
turned into a rotation in or about July 2021, and Fiorente’s April to June 2021 NBA to the  
Real Time Operations Team, were primarily for the purpose of allowing them (and OPG)  
to assess whether shift work was for them. However, there was also a substantial staffing  
gap backfill element to these assignments. As such they were in the nature of relief  
assignments, all of which were for less than 90 days. The Society does not dispute  
OPG’s assertion that it was given notice of Akanni’s and Fiorente’s relief NBAs.  
However, there is no evidence that OPG gave notice to the Society of Toor’s relief NBA.  
OPG therefore violated Article 65.3 with respect to Toor’s relief NBA.  
167. I find that Akanni’s assignment subsequent to his relief NBA which OPG claims  
was a “rotation” into the Real Time Operations Team was a temporary assignment to  
cover a MP-4 staffing gap in the Real Time Operations Team. If it was a rotation as OPG  
claims it violated Article 65 because rotation assignments to ongoing positions are  
prohibited. If it was a relief assignment OPG violated Article 65.4.3. Notwithstanding  
that it apparently ended in less than 91 days when Akanni became permanent, it was  
intended to be a 2-year assignment. As such, OPG was required to obtain the Society’s  
consent to extend the assignment for up to one year and was in any event prohibited from  
extending it beyond one year. Although there is no evidence of Article 65.3 notice of this  
assignment to the Society, the evidence is that all rotations into the Real Time Operations  
Team were posted so that the Society had actual advance notice in that respect.  
168. As for Fiorente’s assignment to the Real Time Operations Team subsequent to her  
relief NBA, I find that in her case the Society had actual notice of the 2-year purported  
“rotation” by way of a job posting. Notwithstanding that there is no evidence that the  
Society made any specific objection to it being posted as a rotation, this assignment is  
covered by the grievance herein. I find that this assignment was a temporary assignment  
52  
to cover an ongoing MP-4 position staffing gap in the Real Time Operations Team. OPG  
violated Article 65 by using the rotation to cover a staffing gap in an ongoing position. If  
it was characterized as a relief assignment, then OPG violated Article 65.4.3 by failing to  
obtain the Society’s agreement to have it run for more than 90 days, and OPG will be in  
further violation of Article 65.4.3 if the assignment is extended beyond one year.  
169. I find that Sunassy’s July to November 2021 NBA was a temporary assignment to  
cover an ongoing MP-4 position staffing gap in the Real Time Operations Team. If it  
was a rotation as OPG claims it violated Article 65 because rotation assignments to  
ongoing positions are prohibited. If it was a relief assignment, OPG violated Article